Indradeo Pandit Vs State of Jharkhand through the Principal Secretary Deptt of Higher and Technical Education

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P.(S) No. 1657 of 2023

Indradeo Pandit, aged about 61 years, Son of Late Kedar Pandit, Resident of Dumsa Toli, Pragati Path Road, P.O. and P.S. – Chutia, District – Ranchi/Jharkhand … … Petitioner

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Versus

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State of Jharkhand through the Principal Secretary, Department of Higher and Technical Education, Govt. of Jharkhand, Nepal House, P.O. and P.S. – Doranda, District – Ranchi / Jharkhand

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Principal Secretary, Department of Personnel Administrative Reforms and Rajbhasha, Govt. of Jharkhand, Project Bhawan, P.O.- Dhurwa, P.S.- Jagannathpur, District - Ranchi/ Jharkhand.

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Principal Secretary, Department of Finance, Govt. of Jharkhand, Project Bhawan, P.Ο.- Dhurwa, P.S.- Jagannathpur, District - Ranchi/ Jharkhand.

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Deputy Secretary, Department of Higher and Technical Education, Government of Jharkhand, Nepal House, P.O. and P.S.- Doranda, District Ranchi/ Jharkhand.

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Under Secretary Department of Higher and Technical Education, Government of Jharkhand, Nepal House, P.O. and P.S.- Doranda, District - Ranchi/ Jharkhand.

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Director, Department of Department of Higher and Technical Education, Government of Jharkhand, Nepal House, P.O. and P.S. – Doranda, District – Ranchi / Jharkhand/Jharkhand

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… … Respondents

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--- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Saurav Arun, Advocate : Mr. Bhanu Kumar No.1, Advocate For the Respondents: Mr. Ratnesh Kumar, AC to SC (L&C) I Mr. Nawal Kishore Pandey, AC to SC (L&C) I

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09 /05.03.2024 The learned learned counselsels for the parties are present.

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

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“a) for issuance of a writ(s)/order (s)/direction (s) or a writ in the nature of certiorari for quashing of the part of proceedings of meeting held on 13.2.2020 (ANNEXURE- 6) obtained through RTI on 18.7.2022 by which though the respondent admitted the appointment of the petitioner as legal and regular after following the due procedure as required under Articles 14 and 16 of the Constitution of India but the Committee cannot take any decision to recommend his regularization in spite of the fact that they have admitted about the Regulation Rule, 2015 amended on 20.6.2019 in terms of the Judgment passed by the Hon'ble Apex Court in Narendra Tiwary Case and the cut off date has been fixed as 19.6.2020 and the case of the petitioner falls within the cut off date but he has not been regularized till date though the petitioner has retired and he will lose all the benefits as that of regular employees; AND

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b) for issuance of a writ(s)/order (s)/direction (s) or a writ in the nature of mandamus commanding upon the respondents to consider the case of the petitioner as that of similarly situated persons against whom the order has been passed for regularization immediately and forthwith ; AND

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c) for issuance of a writ(s)/order (s)/direction (s) or a writ in the nature of mandamus commanding upon the respondents to consider the case of petitioner in terms of Rule 58 and 59 of the Jharkhand Service Code for payment of retiral benefit and also in terms of the latest judgment of the Hon'ble Apex Court that even if the temporary employee works for a considerable period then also he is entitled for the retiral benefit especially pension;

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AND/OR

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Pass such other order(s)/direction(s) as Your Lordships may deem fit and proper under the facts and circumstances of this case for doing conscionable justice to the petitioner.”

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3. The learned counsel while referring to the impugned order refusing to grant the benefit of regularization to the petitioner in terms of Circular No.1348 dated 13.02.2015 read with Circular No. 4871 dated 20.06.2019 has submitted that the impugned order has been passed on 13.02.2020 and there has been a subsequent decision of the State Government as contained in Annexure - 7 to the writ petition vide Memo No.735 dated 10.08.2022. The learned counsel submits that the said decision is in favour of the petitioner and if the respondents are directed to consider the said decision along with other applicable rules and regulations, the petitioner would be entitled for regularization in terms of the said Circular. The learned counsel further submits that after the issuance of the said Circular, the petitioner has represented before the respondent no.6 but no decision has been taken.

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4. The learned counsel has further submitted that the claim of regularization of the petitioner has been rejected by the impugned order without granting any opportunity of hearing to the petitioner and consequently other material facts which were required to be considered by the authority could not be placed. The learned counsel submits that one opportunity be given to the petitioner so that the case of the petitioner be considered afresh in terms of the aforesaid Circular. The learned counsel has further submitted that the petitioner is concerned only with paragraph no.3 of the impugned order. So far as paragraph no.2 is concerned, it is relating to some other employees.

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5. The learned counsel appearing on behalf of the respondents has opposed the prayer and has submitted that the petitioners were appointed contractually to the post of programmer in the year 19961997 on consolidated monthly emolument for a specified period of

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minimum one year and maximum three years by the government under World Bank Aided Strengthening of Polytechnic Project initiated in the Year 1990-91 by the undivided State of Bihar. In course of time, the government through Resolution No.971 dated 11.04.1990 had resolved to continue the courses and the period of contractual employment of the petitioner was extended till 30.09.1998 when the World Bank Aided Strengthening of Polytechnic Project came to an end. The last extension was given by the State of Bihar after bifurcation was vide letter dated 17.02.2001 till 28.02.2001 and ultimately from 01.03.2001 the contractual service of the employees of World Bank Strengthening of Polytechnic Project came to an end.

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6. The learned counsel submits that the State of Jharkhand being a welfare State took a decision in 2003 and allowed the petitioner along with several other similarly situated contractual employee of World Bank Aided Project/schemes to continue in the employment in the same terms and conditions of contract as agreed by the parties until the regular and substantive appointment would not be made against sanctioned posts. It is their further case that the arrangement was purely temporary in nature only to provide means of livelihood to the contractual employees. It has been further asserted that from 28.02.2022, the petitioner is not in service having already attained the age of 60 years. The learned counsel further submits that there is no question of payment of any post-retiral benefits to the petitioner as the petitioner was never employed in service of the State Government on regular basis.

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7. However, during the course of argument, it is not in dispute that the impugned order has been passed without giving an opportunity of hearing to the petitioner and after the impugned order, a decision has been taken contained in Memo No.735 dated 10.08.2022 though the enclosures or annexures to the said decision has not been annexed by the petitioner in this writ petition and, therefore, it is not known as to whether the name of the petitioner appears in the said list or not. It further appears that the petitioner has annexed a few more documents along with the rejoinder to the counter affidavit to which the respondents had no occasion to respond.

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8. After hearing the learned counsel for the parties and considering the aforesaid facts and circumstances of this case, it is not in dispute that the petitioner was employed by virtue of a tripartite agreement dated 11.04.1990 executed between the Ministry of Human Resources Development Department, Government of India and Government of Bihar and International Development Association World Bank for running a program in the State of Bihar for strengthening the polytechnic education which was under the implementation by the then State of Bihar.

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9. It further appears that the service of the petitioner was continued from time to time under the said project though on contractual basis and even after the end of the project, the petitioner was permitted to continue by virtue of certain decision taken by the State of Jharkhand in the year 2003. Ultimately the petitioner attained the age of 60 years on 28.02.2022. It further appears that certain decision was taken in connection with the employees of the World Bank in connection with the persons employed in the project by virtue of decision contained in Memo No.735 dated 10.08.2022 but the enclosures to the said decision has not been annexed.

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10. This Court further finds that the impugned order was passed on 13.02.2020 and therefore there was no occasion to consider the aforesaid decision dated 10.08.2022. It further appears from the records of this case that the petitioner is claiming regularization strictly in terms of the aforesaid Circulars issued in the year 2015 and 2019 and the impugned order has been passed without granting an opportunity of hearing to the petitioner.

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11. This Court is of the considered view that the claim for regularization of the petitioner has a serious bearing on his right to life and personal liberties and such denial cannot be taken likely. This Court is of the view that in order to reject the claim of the petitioner for regularization, an opportunity of hearing was required to be given to the petitioner so that the entire facts which is sought to be placed on record in this writ proceedings could be considered.

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12. In order to enable the respondents to pass a fresh order after granting an opportunity of hearing to the petitioner, the impugned order dated 13.02.2020 so far as it relates to the petitioner is set aside

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and matter is remitted to the respondent no.6. The petitioner to file his detailed representation within a period of two months from today by giving each and every fact with regard to his service along with supporting documents including the enclosure to the Annexure - 7 dated 10.08.2022 along with a copy of the writ records.

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13. Upon receipt of such representation the respondent no.6 shall place the records before the committee who has passed the impugned order so that the claim of the petitioner is taken to its logical end after granting an opportunity of hearing to the petitioner by the committee. The needful be done by the respondent no.6 within the period of one month from the date of representation and the final decision be taken by the committee within a period of 4 months from the date the matter is placed by the respondent no.6 before the committee after granting an opportunity of hearing to the petitioner.

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14. The final decision of the committee, be communicated to the petitioner through speed post.

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15. This writ petition is disposed of with the aforesaid observation and direction.

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16. It is made clear that this Court has not entered into the merit or otherwise of the claim of the petitioner and the impugned order has been set aside so as to enable the petitioner to place his entire case before respondent no.6 / the committee who are bound to take fresh decision in accordance with the applicable rules/regulations/circulars etc .

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(Anubha Rawat Choudhary, J.)

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Saurav

Indradeo Pandit v. State of Jharkhand through the Principal Secretary Deptt of Higher and Technical Education

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Indradeo Pandit v. State of Jharkhand through the Principal Secretary Deptt of Higher and Technical Education

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