Jharkhand Prant Anaupcharik Shiksha Anudeshak… — Education and Admissions | Jharkhand HC (2022)

Jharkhand Prant Anaupcharik Shiksha Anudeshak… — Education and Admissions | Jharkhand HC (2022)

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P.(S) No. 1618 of 2019

Jharkhand Prant Anaupcharik Shiksha Anudeshak Sangh, having its office at Nayasarai, P.O. – Murma, P.S. – Jagarnathpur, District – Ranchi, represented through its president Umesh Mahtha, aged about 52 years, S/o late Jagdish Mahtha, resident of village – Kumhardaga, P.O. – Gola, P.S. – Gola, District - Ramgarh

… … Petitioner

Versus

The State of Jharkhand, through Chief Secretary, Jharkhand at Project Bhawan, P.O. – Dhurwa, P.S. – Jagarnathpur, District – Ranchi

The State of Bihar through Chief Secretary, Govt. of Bihar, Bailey Road, P.S. – Sachivalaya, P.O. – Sachivalaya, District – Patna

The Secretary, Human Resources Development Department, Office at Vilas Bhawan, Bailey Road, P.O. & P.S. – Sachivalaya, District – Patna Bihar

The Principal Secretary, Department of Human Resources Development Project Bhawan, P.O. – Dhurwa, P.S. – Jagarnathpur, District – Ranchi

The Director, Primary Education Project Bhawan, P.O. – Dhurwa, P.S. – Jagarnathpur, District – Ranchi

The Coordinator, Mass Education Project, P.O. – Dhurwa, P.S. – Jagarnathpur, District - Ranchi.

… … Respondents

CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

--For the Petitioner : Mr. Vikas Kishore, Advocate : Mr. Shiv Prasad, Advocate For the Respondents : Mr. Pankaj Kumar Choudhary, A.C. to S.C. (L&C II)

08 /06.06.2022 Heard Mr. Vikas Kishore, learned counsel appearing on behalf

of the petitioner.

2. Heard Mr. Pankaj Kumar Choudhary, learned counsel appearing on behalf of the respondents.

3. This writ petition has been filed for the following reliefs:

“1. That by way of this application petitioner prays before this Hon’ble Court for issuance of an order/orders, direction/directions, writ / writs commanding upon the respondents to appoint/absorb the members of the petitioner group/society in the State Government jobs or to make absorption and to regularize the petitioner on the post of elementary school or any other equivalent suitable post considering long and continuous services rendered by the petitioners for imparting education as non-formal instructors.

And / or

Further prays that the respondents should act as per their undertaking given by the Respondent No.4, the Director, Primary Education, Govt. of Jharkhand before the Hon’ble Jharkhand High Court and to the petitioner, vide order dated 24.09.2012 passed by the

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Respondent No.4, the Director Primary Education, Jharkhand, Ranchi by his/her order no.Iyapank No.8/Mu/1-06/2009/1864 dated 24.9.2012 (Annexure – 22) whereby and whereunder the Director, Primary Education, Ranchi (Respondent No.4) has assigned reasons that the case of the petitioner will be considered by the State Government after the outcome of the L.P.A. No.1489/2011.

And

Further prays before this Hon’ble Court for quashing of the order no.16/09 shi – 03/2015 – 783/Ranchi, dated 24.5.2016 by the Director, Primary Education Jharkhand, Ranchi (Respondent No.4) whereby and whereunder the Director Primary Education (Respondent No.4) has denied the absorption of the petitioner on the Government jobs stating therein that the State Government after consultation has come to the conclusion that the grievance of the petitioner is not legible and hence their demand is dismissed. (Annexure – 29).

And

Further prays that the undertaking given, by the Director Primary Education, Jharkhand Ranchi Respondent State vide order no.Mu/1-06/2009/1864 dated 24.9.2012 should be given due respect and even the State Government cannot be allowed to ignore/withdraw from the said undertaking and the respondents should not be allowed to go against their own statement which the respondents have stated on oath before the Hon’ble.

And

For issuance of an order/orders, direction/directions, upon the respondents for absorption of the petitioner in the light of provisions of Article 14, 16 (1) and Article 39 of the Constitution of India as per the guidelines of the Hon’ble Supreme Court passed in many cases and in the light of judgment rendered in Special leave to Appeal (C) No.32079/2015.”

Arguments of the Petitioner

4. The learned counsel for the petitioner submits that the members of the petitioner have been working as instructors and were appointed as back as in the year 1983 and through this writ petition, the petitioners are seeking absorption / regularization of their services on the post of teacher of elementary school or any other equivalent suitable post considering long and continuous service rendered by the members of the petitioner for imparting education as non-formal instructors. The learned counsel submits that the petitioner along with the other individuals had moved this Court in W.P.(S). No.5966 of 2008 which was disposed of vide order dated 29.06.2012 enabling the petitioner to file representation before the authority seeking adjustment / absorption/ appointment in other departments in the light of observation made by Hon’ble Patna High Court in C.W.J.C. No.

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8418 of 2010, which was an order passed with respect to similarly situated persons in the State of Bihar.

5. The learned counsel submits that thereafter a decision was taken by the State of Jharkhand dated 24.09.2012 (Annexure – 22) wherein it was observed that against the order passed by Hon’ble Patna High Court in C.W.J.C. No.8418 of 2010, an appeal being L.P.A. No.1489 of 2011 was filed and the case of the members of the petitioner would depend upon the outcome of the order passed in the said L.P.A. The learned counsel submits that ultimately L.P.A. No.1489 of 2011 arising out of order passed in C.W.J.C. No.8418 of 2010 was dismissed by Hon’ble Patna High Court vide judgment dated 11.08.2015 (Annexure – 27) and the Special Leave Petition against the same filed by the State of Bihar was also dismissed. He also submits that in spite of the fact that the order in C.W.J.C. No.8418 of 2010 passed by the Hon’ble Patna High Court became final and the writ petition before this Court being W.P.(S). No.5966 of 2008 was disposed of vide order dated 29.06.2012 enabling the petitioner to file representation in light of C.W.J.C. No.8418 of 2010, the respondent State of Jharkhand was bound to give similar relief as that of the petitioners of C.W.J.C. No.8418 of 2010 in Hon’ble Patna High Court, but by the impugned order dated 24.05.2016, the same has been declined.

6. Learned counsel has also submitted that on account of noncompliance of order dated 29.06.2012 passed in W.P.(S). No.5966 of 2008, a contempt petition was filed before this Court being Contempt Case (Civil) No.851 of 2013, but the contempt proceeding was dropped vide order dated 21.02.2015 by observing that the petitioner may have liberty to pursue the matter pursuant to outcome of the L.P.A. pending before the Hon’ble Patna High Court. He also submits that after dropping of the contempt petition, a C.M.P. No.137 of 2016 was filed before this Court and the contempt was revived and ultimately, the contempt proceeding being Cont. Case (Civil) No.851 of 2013 was again dropped by this Court vide order dated 21.07.2017 by observing that the respondents have taken a decision vide order dated 24.05.2016. The learned counsel submits that against the order dated 21.07.2017 passed in Contempt Case (Civil) No.851 of 2013,

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one LPA was also filed being L.P.A No.421 of 2017, which was also dismissed, against which, one Special Leave Petition was also filed which was withdrawn vide order dated 10.09.2018 (Annexure – 32) with a liberty to take appropriate proceedings and consequently the present writ petition has been filed for the aforesaid relief. The learned counsel submits that the case of the petitioner is squarely covered by the judgment passed by Hon’ble Patna High Court passed in C.W.J.C. No.8418 of 2010 and accordingly, the present writ petition has been filed.

Arguments of the Respondents.

7. Learned counsel appearing on behalf of the respondents, on the other hand, has submitted that the impugned order dated 24.05.2016 has been passed denying the absorption/regularization of the members of the petitioner by citing reasons. He submits that the members of the petitioner are not government servants and they have been working on part time basis and the claim for regularization / absorption was rejected vide decision of the State Government after considering the case of the petitioner. Learned counsel submits that on the face of the reasoned order dated 24.05.2016, which is impugned in the present case, no case for regularization / absorption of the petitioner is made out. He also submits that the decision passed by Hon’ble Patna High Court as well as the follow up decision, if any, by State of Bihar has no bearing in the matters which relate to State of Jharkhand. He also submits that the matter of regularization/absorption is essentially a matter of policy and there is no scheme for regularization or absorption of the persons like those represented by the petitioner. Findings of this Court

8. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, it is not in dispute that the members of the petitioner have been working as part time instructors. It further appears that the petitioner along with its other members had filed a writ petition being W.P.(S). No.5966 of 2008. When the W.P.(S). No.5966 of 2008 was taken up, the counsel for the State had submitted that the petitioners may be permitted to file representation before the authorities in the light of certain observations made by Hon’ble Patna High Court for similarly situated persons.

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Consequently, the writ petition was disposed of vide order dated 29.06.2012 with the following observations and directions:

“3. Accordingly, the present writ petition stands disposed

of with the direction that petitioners may move representation before the authorities seeking adjustment/ absorption/ appointment in other departments in the light of the observation made by Hon’ble Patna High Court in C.W.J.C. No.8418 of 2010, copy of which, is annexed as Annexure – 19. If such representation is moved, authorities shall take decision therein within 90 days thereafter, in accordance with law. It goes without saying that considering the services rendered by the petitioners, authorities shall take sympathetic view so that petitioners may not be left to starve.”

9. It further appears that pursuant to the aforesaid order dated 29.06.2012 passed in W.P.(S). No.5966 of 2008, a decision was taken vide order dated 24.09.2012 (Annexure – 22) mentioning about pendency of appeal being L.P.A No.1489 of 2011 before Hon’ble Patna High Court against the judgment passed in C.W.J.C No.8418 of 2010.

10. The petitioner had also filed a contempt petition before this Court being Contempt Case (Civil) No.851 of 2013 for noncompliance of order dated 29.06.2012 passed in W.P.(S). No.5966 of 2008 and the contempt proceeding was dropped by observing that the petitioner may have liberty to pursue the matter pursuant to the outcome of the L.P.A No.1489 of 2011 pending before Hon’ble Patna High Court.

11. This Court also finds that after dismissal of L.P.A No.1489 of 2011 by Hon’ble Patna High Court, one C.M.P No.137 of 2016 was filed before this Court to revive the contempt petition and the C.M.P was disposed of by restoring the contempt case to its original number vide order dated 29.07.2016. Ultimately, the contempt case was again taken up and the contempt proceeding was dropped vide order dated 21.07.2017 on the ground that the respondents had taken a decision vide order dated 24.05.2016. It further appears that against the order dated 21.07.2017 dropping the contempt case, the petitioner had also filed an appeal before this Court being L.P.A No.421 of 2017 which was dismissed vide order dated 14.11.2017. In the said order passed in L.P.A No.421 of 2017, the petitioner had heavily relied upon the

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judgment passed by Hon’ble Patna High Court in L.P.A No.1489 of 2011. However, L.P.A No.421 of 2017 was ultimately dismissed by observing that no challenge was made to the decision of the Government of Jharkhand dated 24.05.2016 and also observing that the State of Jharkhand has all power, jurisdiction and authority to take a decision as per the wisdom of the government. Against the dismissal of L.P.A No.421 of 2017, a Special Leave Petition was also filed before the Hon’ble Supreme Court which was withdrawn vide order dated 10.09.2018 (Annexure – 32) with a liberty to take appropriate proceeding.

12. Thereafter, the present writ petition has been filed challenging the decision dated 24.05.2016 whereby the claim for absorption/ regularization of the petitioner has been declined by the respondents. 13. Admittedly, L.P.A No.1489 of 2011 was dismissed by Hon’ble Patna High Court vide judgment dated 11.08.2015. Para 2 to 4 gave the foundational back ground of the case and para 5 recorded the finding of the writ court and para 8 to 13 of the L.P.A judgment contains the findings:

Para 2 to 4 of the said Judgement is quoted hereunder:

2. The question is, whether the State could legitimately distinguish and differentiate between the retrenched Non-Formal Supervisors and Non-Formal Instructors as a consequence of closure of the scheme in the State. The former i.e. Non-Formal Supervisors were rehabilitated, pursuant to the Government policy decision dated 12^th January, 2010. But, when it came to the Instructors i.e. NonFormal Instructors, they were left high and dry. Several writ petitions were filed, one of them was the instant writ proceedings.

3. There are several intervention applications, we need not pass any order thereon because the benefit being given to the applicable to all similarly situated persons.

4. On behalf of the writ petitioners, it was urged before the learned Single Judge that all retrenched persons, may they be Supervisors or Instructors, form a singular class, and were thrown on the roads pursuant to closure of the scheme without any semblance of employment. The State, on the other hand, took stand that Supervisors, who were drawing remuneration of about Rs.600/- per month and were far less in number, were a class by themselves, whereas the Instructors, who were at least five times the Supervisors and were drawing remuneration of only Rs.200/- per month, form a class by themselves. They had different responsibilities and different educational qualifications, therefore, they were two different classes.

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Absorbing one and leaving out the other, was neither discrimination nor arbitrary classification, and thus, was held to be rational.

5. The learned Single Judge, upon examination of the facts, held and we respectfully concur that the classification, prior to retrenchment or closure of the scheme, is of no relevance. Both the classes i.e. Supervisors and Instructors, upon closure of the scheme, were on the road with no source of employment or livelihood. They form a singular class. Any distinction, as being, sought to be made by the State between Supervisor and Instructor, at this stage and at this point of time, was illusionary and had no nexus with the rights of those persons to seek absorption.

6……

7…….

8. Having taken a policy decision to rehabilitate non-formal Supervisors and this Court having held that the distinction being drawn between Supervisors and Instructors having no legal basis, this policy has to extend to the Instructors. Not extending the same would be more arbitrary than extending.

9. Having considered the matter, it is unnecessary for us to take note of various stages to which this litigation has travelled. Suffice it to say that the only distinction that was being made was the classification pre-retrenchment and extending it to post-retrenchment, which they have already deprecated. The result being that State Appeal has to be dismissed and the writ petitions have to be allowed, also the Civil Review would have to be allowed.

10. We would only like to add that the State policy in respect of Supervisors be adopted mutatis mutandis with only addition that it would apply to the Instructors, who were found working for three years continuously, at the time when the non-formal education scheme was abolished, in which they were. The respondents/writ petitioners do not insist on Class III posts but submits that State Government should take them into service even on Class IV posts as per the vacancies available in different Departments. It surely cannot extend to people, who, at any distinct point of time, had worked for a short period and then left the work. They can have no legitimate claim in this regard.

11. In view of the aforesaid, this Letters Patent Appeal is dismissed with observations and directions contained hereinabove. The tagged writ petitions are allowed in the same terms, the Civil Review is also allowed and the writ petition stands disposed of.

12. Needless to say that most of the Instructors would be in advance age group, the rehabilitation cannot be provided, of course, not to extend to those who have reached the age of superannuation or are towards the end of their working career.

13. It is expected that the State Government would take expeditious steps to see that eligible people are rehabilitated, such processes should be completed within a period of six months.”

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14. It further appears that against the dismissal of Letters Patent Appeal, the State of Bihar moved Hon’ble Supreme Court and the appeal was dismissed vide order dated 26.02.2016 with further observation as under:

“The relief granted by the High Court shall be restricted to those who approached the high Court who were heard as well as who wanted to get themselves impleaded and those who have filed an application here at par with those former as well as all those petitioner instructors which are pending as on date before the High Court but shall not apply to any fresh case either here or before the High Court.”

15. From perusal of the aforesaid judgement passed by Hon’ble Patna High Court in LPA, it appears that certain policy decision was taken by the State of Bihar dated 12.01.2010 in connection with absorption of non-formal supervisors but the same relief was denied to non-formal instructors and it was held that the distinction being drawn between Supervisors and Instructors having no legal basis, the policy for supervisors has to extend to the instructors. In the present case there is no corresponding policy decision of the State of Jharkhand as that of State of Bihar dated 12.01.2010 with regard to non-formal supervisors or with regard to non-formal instructors as a consequence of closure of the scheme in the State. This Court is of the considered view that the aforesaid judgement passed by Hon’ble Patna High Court and relied upon by the learned counsel for the petitioner has no applicability with regard to the members of the petitioner in the State of Jharkhand as the policy or decisions of State of Bihar taken in the year 2010 has no bearing on the State of Jharkhand, the claim of absorption/regularization is essentially a matter of policy.

16. This Court is of the considered view that merely because in the earlier round of litigation in W.P.(S). No.5966 of 2008 disposed of by this Court vide order dated 29.06.2012 (Annexure - 21) with a direction that the petitioners may move representation before the authority seeking adjustment/ absorption/ appointment in other departments in the light of observations made by Hon’ble Patna High Court in C.W.J.C. No.8418 of 2010, the same by itself does not make the judgment passed by Hon’ble Patna High Court in C.W.J.C. No.8418 of 2010 or the policy of the State of Bihar with regards to

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instructors / supervisors binding on the State of Jharkhand. This Court is also of the view that merely because in the order passed by the respondents as contained in Memo No.1864 dated 24.09.2012 (Annexure – 22), it was observed that the L.P.A. No.1489 of 2011 is pending before Hon’ble Patna High Court against the order of Hon’ble Single Judge passed by Hon’ble Patna High Court in C.W.J.C. No.8418 of 2010 and therefore, the authority thought it proper to wait for the outcome of L.P.A. No.1489 of 2011, the same by itself cannot be a ground to say that the judgment passed in C.W.J.C. No.8418 of 2010 by Hon’ble Patna High Court and upheld in L.P.A. No.1489 of 2011 with regard to the Instructors in the State of Bihar is binding on the State of Jharkhand with regard to members of the petitionerinstructors in the State of Jharkhand.

17. This Court finds that the respondents have ultimately taken a decision by the impugned order dated 24.05.2016 rejecting the claim of the petitioner and its members by clearly observing that-

the members of the petitioner were not government servant and they were working as part time instructor under non-formal education scheme sponsored by the Central Government which discontinued in the year 2001 and was discontinued by the State of Jharkhand also from 16.05.2001;

there was no sanctioned post for part time instructors who were paid some monthly honorarium for their work;

the employees under the scheme do not come under any establishment of the State Government and their employment cannot be treated as employment under the State Government; and

-a number of orders have been passed in various writ petitions rejecting the claim for regularization of services of such instructors, the details of which have been mentioned in the impugned order.

18. This Court finds that the aforesaid decision by the impugned order dated 24.05.2016 is a well-reasoned decision.

19. As a cumulative effect of the aforesaid findings, this Court does not find any illegality or perversity in the impugned order rejecting the claim of the members for absorption/ regularization and accordingly

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the impugned order does not call for any interference under Article 226 of the Constitution of India. This Court is of the considered view that the decision to absorb /regularize in the facts and circumstances of this case is essentially a matter of policy for which this Court is not inclined to issue any mandamus under Article 226 of the Constitution of India.

20. Accordingly, this writ petition is dismissed.

21. Pending interlocutory application, if any, is closed.

(Anubha Rawat Choudhary, J.)

Saurav