Allowed

Jharkhand State Forest Development Corporation Limited v. MD Yasuf

Jharkhand HC12 Jun 2025LPA/138/2024

Case brief

AI extract

What is this about?

Daily wagers engaged seasonally by a forest development corporation sought regularisation after termination. The Division Bench held terminated employees whose separation had attained finality cannot be regularised, no sanctioned post was shown, and set aside the Single Judge's direction for regularisation with consequential benefits.

What the court decided

AI extract

Jharkhand State Forest Development… — Labour and Industrial Disputes | Jharkhand HC (2025)

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2025:JHHC:15286-DB

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IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No.138 of 2024

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1. Jharkhand State Forest Development Corporation Limited, having its office at Road No.5, Ashok Nagar, P.O.-Argora, P.S. Argora, District Ranchi, through its Managing Director-cum-Additional Principal Chief Conservator of Forest N.K. Singh, aged about 60 years, son of late Ram Dayal Singh, resident of Forest Officers Colony, P.O. & P.S. Doranda, District Ranchi.

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The General Manager, Minor Forest Produce Circle, Jharkhand State Forest Development Corporation Limited, having its office at P.O. & P.S. Hazaribag, District Hazaribag.

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The Divisional Manager, Minor Forest Produce Project Division, Forest Produce Project Division, Forest Development Corporation Limited, having its office at P.O. & P.S. Garhwa, District Garhwa.

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The Divisional Manager, Minor Forest Produce Project Division, Forest Development Corporation Limited, having its office at P.O. & P.S. Daltonganj, District Palamu at Daltonganj.

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The Divisional Manager, Minor Forest Produce Project Division, Forest Development Corporation Limited, having its office at P.O. & P.S. Hazaribag, District Hazaribag . … … Appellants/Respondents

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Versus

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Md. Yusuf, son of Abdul Sattar, resident of Village Ichak, P.O. Kura, P.S. Latehar, District Latehar (Jharkhand).

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Mishri Thakur, son of Shri Nageshwar Thakur, resident of Village Bathe, P.O. Bathe, P.S. Madhepur, District Madhubani, Bihar, at present residing at Arya Nagar, P.O. & P.S. Sadar, District Hazaribag.

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Tikhuri Mahto, son of Sri Rail Mahto, resident of Village Bajkum, P.O. & P.S. Latehar, District Latehar.

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… … Respondents/Petitioners

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The State of Jharkhand, through its Secretary/Principal Secretary, Department of Forest, Environment and Climate Change, having its office at Nepal House, Doranda, P.O. & P.S. Doranda, District Ranchi .

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… … Performa Respondents/Respondent

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With

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L.P.A. No.141 of 2024

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Jharkhand State Forest Development Corporation Limited, having its office at Road No.5, Ashok Nagar, P.O.-Argora, P.S. Argora, District Ranchi, through its Managing Director-cum-Upper Principal Chief Conservator of Forest Shri N.K. Singh, aged about 60 years, son of late Ram Dayal Singh, resident of Forest Officers Colony, P.O. & P.S. Doranda, District Ranchi.

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The General Manager, Minor Forest Produce Circle, Jharkhand State Forest Development Corporation Limited, having its office at P.O. & P.S. Hazaribagh, District Hazaribagh.

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The Divisional Manager, Minor Forest Produce Project Division, Forest Produce Project Division, Forest Development Corporation Limited, having its office at P.O. & P.S. Garhwa, District Garhwa.

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Divisional Manager, Minor Forest Produce Project Division, Forest Development Corporation Limited, having its office at P.O. & P.S. Daltonganj, District Palamu at Daltonganj.

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Divisional Manager, Minor Forest Produce Project Division, Forest Development Corporation Limited, having its office at P.O. & P.S. Hazaribagh, District Hazaribag . … … Appellants/Respondents

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Versus

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Ashok Kumar Tiwari, son of Si Muni Tiwari, resident of Village-Kutmu, P.O. & P.S. – Untari Road, District Palamau.

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Fotephar Bakhla, son of late Munmasi Bakhla resident of Village-Ramar, P.O. & P.S. Bhandaria, Garhwa.

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Rahul Kumar Sinha, son of late Rajesh Kumar Sinha, resident of Dehri – on – sone, P.O.-Dalmianagar, P.S. Dehri-on-Sone, District-Rohtas, Bihar.

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… … Respondents/Petitioners

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The State of Jharkhand, through its Secretary/Principal Secretary, Department of Forest, Environment and Climate Change, having its office at Nepal House, Doranda, P.O. & P.S. Doranda, District Ranchi .

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… … Performa Respondents/Respondent

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With

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L.P.A. No.176 of 2024

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Jharkhand State Forest Development Corporation Limited, having its office at Road No.5, Ashok Nagar, P.O.-Doranda, P.S. Argora, District Ranchi, through its Managing Director-cum-Additional Principal Chief Conservator of Forest N.K. Singh, aged about 60 years, son of late Ram Dayal Singh, resident of Forest Officers Colony, P.O. & P.S. Doranda, District Ranchi.

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The General Manager, Minor Forest Produce Circle, Jharkhand State Forest Development Corporation limited, having its office at P.O. & P.S. Hazaribag, District Hazaribagh.

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The Divisional Manager, Minor Forest Produce Project Division, Forest Produce Project Division, Forest Development Corporation Limited, having its office at Garhwa, P.O. & P.S. Garhwa, District Garhwa.

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Divisional Manager, Minor Forest Produce Project Division, Forest Development Corporation Limited, having its office at P.O. & P.S. Daltonganj, District Palamu at Daltonganj.

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Divisional Manager, Minor Forest Produce Project Division, Forest Development Corporation Limited, having its office at P.O. & P.S. Hazaribag, District Hazaribag . … … Appellants/Respondents

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Versus

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Kameshwar Choubey, son of Shri Surendra Nath Choubey, resident of Village + P.O. Majhiaon, P.S. Bhawnathpur, District Garhwa.

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… … Respondent/Petitioner

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The State of Jharkhand, through its Secretary/Principal Secretary, Department of Forest, Environment and Climate Change, having its office at Nepal House, Doranda, P.O. & P.S. Doranda, District Ranchi .

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… … Performa Respondent/Respondent

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With

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L.P.A. No.180 of 2024

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Jharkhand State Forest Development Corporation Limited, having its office at Road No.5, Ashok Nagar, P.O.-Doranda, P.S. Argora, District Ranchi, through its Managing Director-cum-Principal Chief Conservator of Forest N.K. Singh, aged about 60 years, son of late Ram

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Dayal Singh, resident of Forest Officers Colony, P.O. & P.S. Doranda, District Ranchi.

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The General Manager, Minor Forest Produce Circle, Hazaribagh, Jharkhand State Forest Development Corporation Limited, having its office at P.O. & P.S. Hazaribagh, District Hazaribagh.

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The Divisional Manager, Minor Forest Produce Project Division, Garhwa, Jharkhand State Forest Development Corporation Limited, having its office at P.O. & P.S. Garhwa, District Garhwa.

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Divisional Manager, Minor Forest Produce Project Division, Daltonganj, Jharkhand State Forest Development Corporation Limited, having its office at P.O. & P.S. Daltonganj, District Palamu at Daltonganj.

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Divisional Manager, Minor Forest Produce Project Division, Hazaribag, Jharkhand State Forest Development Corporation Limited, having its office at P.O. & P.S. Hazaribag, District Hazaribagh.

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… … Appellants/Respondents

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Versus

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Vinod Kumar Pandey, son of Late Bishnudeo Pandey, resident of Village Dhela, P.O. Lesliganj, P.S. Lesliganj, District Palamau.

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Laxman Prakash. son of Shri Baldeo Prakash, resident of Mohalla - Bus Stand, P.O. & P.S. Latehar, District Latehar.

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Anil Kumar Sinha, son of Shri Madan Mohan Prasad Sinha, resident of Mohalla - Pandit Jee Road, Hazaribag, P.O. & P.S. Sadar, District Hazaribag.

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Surendra Prasad Prajapati, son of Late Bhukhan Mahto, resident of Village - Kuppa, P.O. Argi, P.S. Bhawnathpur, District Garhwa.

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Girindra Nath Pandey, son of Shri Ramanand Pandey, resident of Village & P.S. Rajwadih, P.S. Medninagar, District Palamau.

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Suresh Ram, son of Late Karam Manjhi, resident of Village Sonbarsa, P.O. & P.S. Lesliganj, District Palamau.

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Ajay Kumar Pandey, son of Late Kishun Pandey, resident of Village Bhitihara, P.O. Singsigo, P.S. Rehal, District Garhwa.

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Nand Kishore Pal, son of Sri Suneshwar Pal, resident of Village & P.O. Andhoura, P.S. Nagaruntari, District Garhwa.

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Laxman Kumar Pandey, son of Shri Jagdish Pandey, resident of Village Bankikhurd, P.O. Kobai, P.S. Panki, District Garhwa.

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Baijnath Singh, son of Shri Kanhaiya Singh, resident of Village & P.S. Phulang, P.S. Lesliganj, District Palamau.

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Upendra Pandey, son of Shri Baidyanath Pandey, resident Village & P.O. Lagma, P.S. Garhwa, District Garhwa.

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Suresh Kumar Pandey, son of Shri Banktesh Narayan Pandey, resident of Village & P.O. Mahugawan, P.S. Chainpur, District Palamau.

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Rishikesh Dubey @ Hirshikesh Dubey, son of Late Fouzdar Dubey, resident of Village Patrahi, P.O. & P.S. Lesliganj, District Palamau.

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Yogendra Nath Pandey, son of Late Dasisha Pandey, resident of Village & P.O. Rajwadih, P.S. Medninagar, District Palamau.

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Shyam Bihari Dubey, son of Shri Chandrika Dubey, resident of Village Kolhua Khurd, P.O. Purbadiha, P.S. Chainpur, District Palamu.

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Baikuntha Tiwary, son of Late Jalwa Tiwary, resident of Village Redma, P.O. Daltonganj, P.S. Medninagar, District Palamau.

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… … Respondents/Petitioners

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The State of Jharkhand, through its Secretary/Principal Secretary, Department of Forest, Environment and Climate Change, having its office at Nepal House, Doranda, P.O. & P.S. Doranda, District Ranchi .

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… … Performa Respondents/Respondent With

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L.P.A. No.220 of 2024

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Jharkhand State Forest Development Corporation, presently having its office at Road No.5, Ashok Nagar, P.O.-Doranda, P.S. Argora, District Ranchi, through its Managing Director-cum-Additional Principal Chief Conservator of Forest - N.K. Singh, aged about 60 years, son of late Ram Dayal Singh, resident of Forest Officers Colony, P.O. & P.S. Doranda, District Ranchi.

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The Divisional Manager, Minor Forest Produce Project Division, Ranchi, Jharkhand State Forest Development Corporation Limited, having its office at P.O. & P.S. Doanda, District Ranchi.

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Divisional Manager, Minor Forest Produce Project Division,Dalbhum, P.O. & P.S. Dalbhum, District East Singhbhum.

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… … Appellants/Respondents Versus

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Sanjay Kumar Singh, son of Ram Chanda Singh, resident of Deotopma Sudiabigaha, P.O. & P.S. Deo, District Aurangabad, Bihar.

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Anjani Kumar Singh, son of Uchat Nath Singh, resident of Village Manjura, P.O. Lagma, P.S. Sangrampur, District Munger, Bihar.

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Laxmi Oraon, son of late Patri Oraon, resident of Village Hasanpur, P.O. Cheotanha, P.S. Semra, District West Champaran, Bihar.

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Babulal Oraon, son of Mahaveer Oraon, resident of Village Hakajung, P.O. Lapu, P.S. Vishunpur, District Gumla.

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5(a) Kunti Devi, wife of Late Shri Krishna Pandey, resident of Kachaniya, P.O. & P.S. Achar, District Baksar (Buxar), Bihar.

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5(b) Arjun Pandey, son of Late Shri Krishna Pandey, resident of Kachaniya, P.O. Achar, P.S. - Koransarai District Baksar (Buxar), Bihar.

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… … Respondents/Petitioners With

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L.P.A. No.437 of 2024

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Jharkhand State Forest Development Corporation Limited, having its office at Road No.5, Ashok Nagar, P.O.and P.S.-Argora, District Ranchi, through its Managing Director-cum-Additional Principal Chief Conservator of Forest - N.K. Singh, aged about 60 years, son of late Ram Dayal Singh, residing at Forest Officers Colony, P.O. & P.S. Doranda, District Ranchi.

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The General Manager, Minor Forest Produce Division, Jharkhand, State Forest Development Corporation Limited, having its office at Ashok Nagar, P.O. & P.S. – Argora, Doranda District Ranchi.

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The Divisional Manager, Minor Forest Produce Project Division, Ranchi, Jharkhand State Forest Development Corporation Ltd., having its office at Ashok Nagar, P.O. & P.S. – Argora, Doranda District Ranchi.

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… … Appellants/Respondents Versus

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Arvind Kumar Sinha, son of late Nageshwar Prasad, resident of Namkum Road, Doranda, near Vijay Electricals P.O. & P.S. Doranda, District Ranchi.

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Sapan Kumar Roy, son fo late Rammay Roy, R/o C/o Sri J.C. Manjhi, New Shadeo Nagar, Near OTC Ground, P.O. Hehal, P.S. Sukhdeo Nagar, District Ranchi.

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… … Respondents/Petitioners

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The State of Jharkhand, through its Secretary/Principal Secretary, Department of Forest, Environment and Climate Change, having its office at Nepal House, Doranda, P.O. & P.S. Doranda, District Ranchi .

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… … Performa Respondents/Respondent

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With

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L.P.A. No.438 of 2024

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Jharkhand State Forest Development Corporation Limited, having its office at Road No.5, Ashok Nagar, P.O.-Doranda, P.S. Argora, District Ranchi, through its Managing Director-cum-Additional Principal Chief Conservator of Forest N.K. Singh, aged about 60 years, son of late Ram Dayal Singh, residing at Forest Officers Colony, P.O. & P.S. Doranda, District Ranchi.

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The General Manager, Minor Forest Produce Project Circle, Hazaribagh, Jharkhand Forest Development Corporation, having its office at P.O. & P.S. Hazaribagh, District Hazaribagh.

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The Divisional Manager, Minor Forest Produce Project Division, Daltonganj, Jharkhand Forest Development Corporation, having its office at P.O. & P.S. Daltonganj, District Palamu at Daltonganj.

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… … Appellants/Respondents Versus

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Virendra Kumar Pandey, son of late Bachu Pandey, resident of Village + P.O. Bhandar, P.S. Bisrampur, District Palamau.

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… … Respondent/Petitioner

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The State of Jharkhand, through its Secretary/Principal Secretary, Department of Forest, Environment and Climate Change, having its office at Nepal House, Doranda, P.O. & P.S. Doranda, District Ranchi .

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… … Performa Respondent/Respondents

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE RAJESH KUMAR

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------For the Appellants : Mr. Rupesh Singh, Advocate : Mr. Jagdeesh, Advocate For the Respondents : Mr. Manoj Tandon, Advocate : Mr. Amandeep Kumar Pandey, Advocate [in LPA No.180/2024] : Mr. Amit Kumar Das, Advocate : Mr. Shivam Utkarsh Sahay, Advocate [in LPA No.437/2024] : Mrs. Smita Kumari, Advocate [in LPA No.141/2024] : Mr. Pankaj Kr. Srivastava, Advocate [in LPA No.220/2024] For the State : Mr. Zeeshan Ahmad Khan, AC to SC-VII : Mrs. Sunita Kumari, AC to SC-II : Mr. Siddharth Jain, : Mr. Ranjan Kumar, AC to Sr. SC-II : Mr. Rakesh Kumar Shahi, AC to AG [in LPA No.176/2024] : Mr. Yogesh Modi, AC to AAG-1A [in LPA No.438/2024] ------

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C.A.V. on 06.05.2025 Pronounced on 12/06/2025

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Per Sujit Narayan Prasad, J.

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Prayer

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1. All these appeals are under Clause 10 of the Letters Patent directed against the common order/judgment dated 15.12.2023 passed in W.P.(S) No.4561 of 2016, W.P.(S) No.6127 of 2011, W.P.(S) No.1374 of 2017, W.P.(S) No.1939 of 2017, W.P.(S) No.2257 of 2017, W.P.(S) No.6387 of 2017 and W.P.(S) No.6496 of 2017 whereby and whereunder while allowing the writ petitions, the learned Single Judge has directed the respondents to consider the case of each individual petitioners and thereafter pass order for regularization of their services from the date they have been stopped from working, with all consequential benefits.

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Factual Matrix

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2. The brief facts of the case which are required to be enumerated read hereunder as :-

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The facts of all these writ petitions are same and similar, save and except the formal dates of joining of petitioners and numbers of writ petitions which were filed in the light of order dated 27.01.2014 passed by Hon’ble Apex Court in W.P.(C) No. 700 of 2013. As such, the facts of only one case are being dealt with.

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3. The facts pleaded in writ petition being W.P.(S) No. 4561 of 2016 are that these petitioners were working as Daily Wagers and they were engaged in between 1982-86. The Government of Bihar, Department of Forest and Environment, issued a notification with respect to trading of Kendu leaves and the same was notified on 14.03.1987. With a view to achieve such object, the General Manager, Minor Forest Produce Project, Hazaribagh issued instructions to Divisional Managers to appoint daily wagers, like the petitioners for working under the said project on the post of Forest Produce Overseer. In the light of such direction, the date of written test, physical test and interview were notified. The petitioners were directed to appear before the Selection Committee by order dated 03.05.1987. The petitioners faced selection process and

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subsequently declared successful on 10.05.1987 and the document to this effect has been brought on record as Annexure-4, wherein, the names of these petitioners find place. This led to issuance of appointment letters on 14.05.1987 and 27.04.1988. The petitioners thereafter joined in between 08.06.1987 to 01.05.1988. The petitioners continued to work as such and in the meantime, the State of Bihar was bifurcated on 15.11.2000. Jharkhand State Forest Development Corporation Limited (JSFDC) came into existence on 23.03.2002 and the services of petitioners fell within the jurisdiction of JSFDC. However, by order dated 22.03.2003, the Managing Director, Bihar State Forest Development Corporation Limited directed to terminate the service of petitioners along with others on the ground that these appointments were made for three months only and hence, the petitioners could not be retained in service. The petitioners challenged the said decision in W.P.(S) No. 6625 of 2006, which was dismissed on 06.11.2012 on the ground that similar matter preferred by one Prabhu Nath Dubey was dismissed. The Letters Patent Appeal, being L.P.A. No. 481 of 2012 preferred thereagainst was also dismissed on 05.12.2012. The Special Leave to Appeal (C) No. 13772 of 2013 was also dismissed on 10.05.2013.

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4. Thereafter, a writ petition under Article 32 of the Constitution of India was preferred before the Hon’ble Supreme Court, which was registered as W.P.(C) No. 700 of 2013. This writ petition was disposed of by the Hon’ble Supreme Court on 27.01.2014 with observations that the petitioners should raise all the factual and legal issues available to them before the High Court. However, in the meantime, on 05.01.2012, a Committee was constituted and letter dated 13.05.2013 was issued whereby it was stated that since the petitioners have worked for more than 25 years, their cases shall be considered. Finally, when the case of the petitioners were not considered in the light of observations of the Hon’ble Supreme Court in W.P.(C) No.700 of 2013, the petitioners preferred a writ petition, being W.P.(S) No.1449 of 2014, which was disposed of on 16.10.2015, whereby this Court directed the respondentCorporation to consider the case of petitioners for regularization.

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As per direction of this Hon’ble Court in W.P.(S) No.1449 of 2014, the respondents have considered the case of the petitioners, but the same was rejected on 09.05.2016. This decision dated 09.05.2016 was communicated vide letter dated 26.05.2016, which is impugned in these writ petitions.

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5. Respondents 2 to 6 (Jharkhand State Forest Development Corporation Limited) filed counter affidavit stating inter alia therein that the writ petition was devoid of any merit. It was contended that the petitioners moved this Court and ultimately lost up to the Hon’ble Apex Court. However, liberty was given by the Hon’ble Apex Court in the writ petition filed under Article 32 of the Constitution of India to approach the High Court. This Court directed the respondents to consider the case of petitioners, but the same was rejected, which is valid and legal. The petitioners were engaged purely on temporary basis as stopgap arrangement or on ad hoc basis. Their services came to an end after expiry of three months. Though the petitioners continued for many years but that would not give or confer any legal right upon the petitioners to continue on the post. The petitioners were not a confirmed employee of Bihar State Forest Development Corporation Limited. After bifurcation, the petitioners continued until 23.03.2003 by virtue of the provisions enshrined in Section 65 of the Bihar Reorganization Act, 2000. Salary up to 23.3.2002 has also been paid. It is reiterated that the petitioners were appointed by letter nos. 264 and 265 dated 03.06.1982 and letter no. 51 dated 07.07.1987 for three months only for seasonal work. The claim of regularization of the petitioners has rightly been refused.

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6. It is evident from the factual aspect that save and except the respondents of L.P.A. No.138 of 2024, after being separated from service since they were restrained from discharging their duties, had approached this Court by filing writ petition being W.P.(S) No.5695 of 2004.

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7. The said writ petition was dismissed. The petitioners, respondents herein, had filed intra-court appeals being L.P.A. No. 483 of 2012, but the same was also dismissed against which Special Leave Petition being S.L.P.(Civil) D. No.7627 of 2013 had been filed but the said Special Leave Petition has also been dismissed.

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8. Subsequent thereto, the writ petitioners/ respondents in L.P.A. No. 180 of 2024, moved an application before the Hon'ble Apex Court under Article 32 of the Constitution of India being Writ Petition (Civil) No.700 of 2013, seeking therein direction for regularization. The said writ petition has been allowed to be withdrawn with liberty to the writ petitioners to approach the High Court vide order dated 27.01.2014.

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9. The writ petitioners/respondents preferred writ petition before this Court in terms of the said order being W.P.(S) No.2172 of 2014 and analogous cases (i.e., W.P.(S) No.1449 of 2014, W.P.(S) No.2316 of 2014 and W.P.(S) No.2425 of 2014).

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10. The learned Single Judge of this Court has passed an order directing that due consideration should be accorded to such a claim in accordance with law and the Rules of 2015 by the respondent corporation within a reasonable time, preferably within a period of six months.

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11. The case of the writ petitioners had been considered but rejected vide order dated 09.05.2016 on the ground that no such sanctioned post was available during the relevant time.

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12. The case of the respondents/writ petitioners in L.P.A. No.437 of 2024 being represented by Mr. Amit Kumar Das, learned counsel, is that they have been restrained from discharging their duties and even though they have been appointed against the sanctioned post but their regularization has been refused by the common order passed by the respondent authority.

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13. The case of the respondents/writ petitioners in L.P.A. No.220 of 2024 who are being represented by Mr. Pankaj Srivastava, learned counsel, is that the writ petitioners/respondents had been separated from service amounting to termination which had been challenged by filing writ petition being W.P.(S) No.6127 of 2011 and during the pendency of the said writ petition, the prayer for regularization has been rejected.

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14. The respondents/writ petitioners, against the rejection of the regularization in service, preferred writ petitions being W.P.(S) No. 4561 of 2016 and analogous cases.

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15. The learned Single Judge, on consideration of the fact of long length of service said to be continued by one or the other writ petitioners as also the appointment has been considered to be made against the sanctioned post on the basis of the fact that all the respondents/writ petitioners had been given the benefit of regular pay scale, revision in pay scale, preparation of seniority list as also opening of the service books, directed vide order dated 15.12.2023 to consider the case of one or the other writ petitioners with a further direction to regularize them with all consequential benefits.

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16. The said order has been challenged in these appeals which have been directed to be heard together and, as such, listed together for analogous hearing.

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Submission of the learned counsel appearing for the appellant-Jharkhand State Forest Development Corporation Limited:

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17. Mr. Rupesh Singh, learned counsel appearing for the appellant-Jharkhand State Forest Development Corporation Limited, has taken the following grounds in assailing the impugned order :-

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(i) One or the other writ petitioners, admittedly the day when the order was passed by the learned Single Judge were out of service being terminated employees.

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(ii) The order of separation from service has attained its finality by dismissal of the writ petition which has been upheld by the Division Bench of this Court against which S.L.P. has also been dismissed.

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(iii) The aforesaid fact, although, has been brought to the notice of the learned writ court but deviating from the same, the direction has been passed for regularization which cannot be said to be a proper direction since the regularization of an employee can only be considered if such employee is in the roll of service. But, herein the writ petitioners have been separated from service amounting to termination hence the terminated employees are having no right for consideration of their regularization.

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(iv) The claim of one or the other writ petitioners has been rejected on the ground that they had not been appointed against the sanctioned post which is the sine qua non for consideration of the issue of regularization on the ground of the law laid down by the Hon'ble Apex Court in Secretary, State of Karnataka & Others v. Uma Devi (3) and Others, (2006) 4 SCC 1 .

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(v) The respondent authority, in terms of the direction passed by the writ court dated 16.10.2015 passed in W.P.(S) No.2172 of 2014 and analogous cases, has considered the case of one or the other writ petitioners but on consideration of the fact that they had not been appointed on sanctioned post, hence their claim has been rejected but the learned Single Judge has not considered the aforesaid aspect of the matter which is the primary requirement for regularization of one or the other employee working under the establishment, rather, on presumption the order has been passed presuming that appointment of one or the other writ petitioners was made against the sanctioned post on the ground of preparation of seniority list, benefit of revision in pay scale having been extended as also the petitioners have been granted the pay scale.

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(vi) It has been submitted that merely because the pay scale has been granted to one or the other employees or the seniority list has been prepared, it does not mean that they have been appointed on the sanctioned post.

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(vii) Moreover, once the service of one or the other writ petitioners has been terminated/separated, then it is the primary requirement to question the issue of

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termination/separation for the purpose of

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consequential direction for regularization.

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(viii) The status of the writ petitioners since is of the separated/terminated employees, as such, there cannot be any regularization but this aspect of the matter has not been taken into consideration.

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(ix) It has been contended that the writ court, while directing to regularize, has committed error since there cannot be any direction by way of command in exercise of power under Article 226 of the Constitution of India to regularize the services of the daily rated employees.

¶182

18. Learned counsel, based upon the aforesaid ground, has submitted that the order/judgment passed by the learned Single Judge, therefore, suffers from an error and, as such, not sustainable in the eyes of law.

¶183

Submission made by learned counsel appearing for the writ petitioners/respondents in L.P.A. No.180 of 2024

¶184

19. Per contra, Mr. Manoj Tandon, learned counsel appearing for the writ petitioners/respondents in L.P.A. No.180 of 2024, has taken the following grounds in defending the impugned judgment: -

¶185

(i) It has been contended in response to the contention advanced on behalf of the appellant Corporation that

¶186

once the writ petitioners have been

¶187

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terminated/separated, there cannot be consideration for regularization in service but the same is having no force on the ground that the said stage has already crossed the moment the learned Single Judge has issued a command for consideration of the case of the writ petitioners vide order dated 16.10.2015 in W.P.(S) No.2172 of 2014 and batch cases.

¶190

(ii) It has been contended that the said order has never been challenged by the Corporation and, as such, the same has attained its finality, rather the Corporation has also considered the issue of regularization which has been rejected on the ground of appointment being made not against the sanctioned post which has been considered by the learned Single Judge on its merit independently and having found it suffering from error, the order impugned has been quashed and set aside, as such, it is incorrect on the part of the appellant Corporation to take the ground that once the writ petitioners have been terminated/separated from service, there cannot be any regularization.

¶191

(iii) The issue of termination/separation although has been upheld up to the level of Hon’ble Apex Court after dismissal of Special Leave Petition but fresh consideration has been given on the ground of regularization holding that the appointment of one or

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the other writ petitioners was made against the sanctioned post and, as such, the case of the writ petitioners was found to be within the purview of Rule, 2015 formulated in pursuance to the judgment passed by the Hon’ble Apex Court in the case of Narendra Kumar Tiwari v. State of Jharkhand reported in (2018) 8 SCC 238 .

¶195

(iv) It has also been contended that the learned Single Judge has come to the conclusive finding considering the appointment of one or the other writ petitioners made against the sanctioned post since it is the State Government who has extended the benefit of revision in the pay scale as also prepared the seniority list and not only that their services have also been confirmed, hence, if on that basis the service of one or the other writ petitioners has been considered to be sanctioned one, it cannot be said that the appointment of one or the other writ petitioners was not against the sanctioned post.

¶196

20. Learned counsel, based upon the aforesaid grounds, has submitted that the impugned judgment, therefore, needs no interference.

¶197

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Submission made by learned counsel appearing for the respondents in L.P.A. No. 437/2024:

¶200

21. Mr. Amit Kumar Das, learned counsel appearing for the respondents in L.P.A. No. 437/2024, has submitted that the fact of the writ petitioners/respondents in the instant appeal is quite different since one or the other writ petitioners although have been separated/terminated but the order passed has not travelled up to Hon’ble Apex Court like that of the case of writ petitioners/respondents who are being represented by Mr. Tandon, learned counsel.

¶201

22. It has been contended that their appointments were made against the sanctioned post after following all due procedure i.e., made by the Selection Committee followed by the interview. Hence, the appointment of the writ petitioners is not illegal, rather, it is regular appointment and in view of the parameter fixed in Para-53 of the judgment rendered in State of Karnataka vs. Uma Devi (3) reported in (2006) 4 SCC 1 , the services of the writ petitioners are fit to be regularized.

¶202

Submission made by learned counsel appearing for the writ petitioners/respondents in L.P.A. No.220 of 2024:

¶203

23. Mr. Pankaj Kumar Srivastava, learned counsel appearing for the writ petitioners/respondents in L.P.A. No.220 of 2024, has submitted that the factual aspect of the writ petitioners/respondents in the present appeal is almost same to that of the writ petitioners/respondents

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who are being represented by Mr. Amit Kumar Das, learned counsel, save and except the difference that the prayer for regularization of the respondents/writ petitioners has been rejected during the pendency of the order of separation/termination which was lying pending for its consideration before this Court under writ jurisdiction.

¶207

24. Learned counsel appearing for the respondents/writ petitioners, based upon the aforesaid grounds, has submitted that the impugned order suffers from no error.

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Analysis

¶209

25. We have heard learned counsel for the parties, gone through the factual aspect as also the finding recorded by the learned Single Judge in the impugned order dated 15.12.2023.

¶210

26. This Court, before considering the legality and propriety of the impugned judgment, needs to refer herein one important fact i.e., the admitted case of the respondents/writ petitioners is that they have been separated/terminated by virtue of restraining them by the State authority in discharge of their duty for which they have come to the High Court by challenging the said action of stopping them from discharge of the duty.

¶211

27. The said action of the State had been challenged by filing writ petitions being W.P.(S) No.5679 of 2004 and W.P.(S) No.5695 of 2004. The writ petitions have been

¶212

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dismissed vide order dated 30.10.2012. The operative part

¶215

of the said order is being referred herein :-

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“In the totality of circumstances, discussed herein-above, the impugned orders, by which the services of the petitioners have been terminated, do not suffer from any such infirmity so as to warrant interference under Article 226 of the Constitution of India. More so, in view of the fact that similar matter arising out of the common impugned order dated 22.03.2003 has been decided and upheld up to the Supreme Court i.e. connected case being W.P.(S) No. 2021 of 2003. These petitioners have continued in service till date on account of interim order passed in these writ petitions, which was passed in the light of the interim order passed in WP(S) No.2021 of 2003. The interim orders, therefore, stand vacated and these writ petitions are, accordingly, dismissed.”

¶217

28. The writ petitioners/respondents had preferred

¶218

Letters Patent Appeal being L.P.A. No. 473 of 2012 and L.P.A. No.483 of 2012 but the said Letters Patent Appeals have also been dismissed.

¶219

29. The writ petitioners/respondents had preferred Special Leave Petition being S.L.P.(Civil) D. No.7627 of 2013 but the same has also been dismissed.

¶220

30. The aforesaid fact, therefore, clarifies the position that the issue of separation/termination of the writ petitioners/respondents of L.P.A. No.138 of 2024 has been approved up to the level of Hon’ble Apex Court by way of order passed in the Special Leave Petition.

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31. So far as the case of writ petitioners/respondents of other Letters Patent Appeals is concerned, the admitted fact is that they have also been separated/terminated but they had not moved up to the Hon’ble Apex Court by preferring Special Leave Petition but the fact about separation/termination is not in dispute.

¶224

32. The aforesaid admitted fact, thus, clarifies the position that one or the other writ petitioners/respondents have been separated/terminated and their status is of the separated/terminated employees.

¶225

33. It is also admitted fact as would be evident from Annexure-A to the counter affidavit of the writ petitioners/respondents filed in L.P.A. No.437 of 2024 that they were engaged in service as seasonal workers for three months during the period when the Kendu leaves was to be collected from the different forest areas of the State of Jharkhand.

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34. It is also evident from the notification dated 13/14.03.1987 as appended as Annexure-A to the counter affidavit filed in L.P.A. No.437 of 2024 that the remuneration which has been decided to be paid in favour of one or the other engages is on the basis of that notification notified by the State of Jharkhand.

¶227

35. The writ petitioners/respondents in L.P.A. No.180 of 2024, after dismissal of the S.L.P., had preferred a fresh

¶228

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litigation before the Hon’ble Apex Court by invoking its jurisdiction conferred under Article 32 of the Constitution of India. The said writ petition, however, has been withdrawn with liberty to approach the High Court and while granting such liberty, the Hon’ble Apex Court has passed the following order :-

¶231

“As the matter remained pending before this Court for quite some time and the petitioners’ claim that they are struggling for their continuation in the department of the respondent-authority for the last 25 years, if such a petition is filed before the High Court, we request the High Court to decide the petition as early as possible preferably within a period of six months. Both parties are at liberty to raise all factual and legal issues available to them before the High Court.”

¶232

36. In terms of the said observation made by the Hon’ble Apex Court, writ petitions being W.P.(S) No.4561 of 2016, W.P.(S) No.6127 of 2011, W.P.(S) No.1374 of 2017, W.P.(S) No.1939 of 2017, W.P.(S) No.2257 of 2017, W.P.(S) No.6387 of 2017 and W.P.(S) No.6496 of 2017 were filed seeking therein direction for regularization.

¶233

37. The learned Single Judge of this Court, vide order dated 15.12.2023 has passed the following directions :-

¶234

“36. In view of the aforesaid rules, regulations, guidelines and judicial pronouncements, this Court is of the considered view that the impugned order dated 9.5.2016 is not tenable in the eyes of law and as such, it is quashed and set aside. The respondents are directed to consider the case of each individual petitioners and thereafter pass order for

¶235

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regularization of their services from the date they have been stopped from working, with all consequential benefits. Let it be made clear that as the matter remains pending for several years before the Hon’ble Apex Court as well as before this Court, if any of the employees has retired or died, he is also entitled for the benefits which are likely to be extended to other similarly situated persons with fixation of pensionery benefits and extending the retiral benefits, if they come within the purview and regularisation.

¶238

Resultantly, all the writ petitions stand allowed. Pending interlocutory applications stand closed.”

¶239

38. However, in the said order it has also been taken

¶240

note about earlier proceeding pertaining to the order of separation/termination.

¶241

39. The respondent authority has taken decision against the writ petitioners/respondents by rejecting their claims for regularization on the ground that they are not coming under the fold of Rule, 2015 being not appointed against the sanctioned post.

¶242

40. This Court, on the basis of the aforesaid admitted fact, is now to consider these issues:-

¶243

(i) Whether the order of regularization can be passed in favour of an employee who is not in service and in the litigations preferred against it, the writ petitioners lost up to the level of Hon'ble Apex Court?

¶244

(ii) Whether the direction can be given by the learned Single Judge in exercise of power conferred under

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Article 226 of the Constitution of India for regularization by way of command or it should have been by way of a direction to consider in accordance with law by scrutinizing the factual aspect for the purpose of appropriate consideration of the claim?

¶248

(iii) Whether the order of regularization can be passed as has been directed by the learned Single Judge in the impugned judgment without exactly scrutinizing the fact that the engagement was made against the sanctioned post or on the presumption of appointment said to be made against the sanctioned post as the fact of the present case herein is, as would be evident from the consideration given by the learned Single Judge in the impugned judgment.

¶249

41. The Issue No.(i) is being dealt with separately herein.

¶250

42. The law is well settled that the regularization of one or the other engagees is only required to be made who is in roll of an establishment.

¶251

Regularization means that whatever irregularity has been committed in the matter of appointment, the same if regularized, such engagee will come under the regular establishment.

¶252

While the termination implies separation from service, meaning thereby, the moment one appointee will be

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terminated, there will be no relationship of employer and employee. The moment the relationship of the employer employee will end, there cannot be question of regularization, reference in this regard may be made to the judgment rendered by Hon’ble Apex Court in the case of Raj Balam Prasad v. State of Bihar , (2018) 12 SCC 50

¶256

wherein it has been observed as under:

¶257

16. This is what the Division Bench held for allowing the appeal and dismissing the appellants' writ petition: ( Vinay Kishore case [ State of Bihar v. Vinay Kishore Pandey , 2016 SCC OnLine Pat 1465] , SCC OnLine Pat para 12)

¶258

“ 12 . We have heard the learned counsel for the parties and find that the order passed by the learned Single Judge is not sustainable in law. The order passed in Sant Prakash Srivastava v. State of Bihar [ Sant Prakash Srivastava v. State of Bihar , LPA No. 434 of 2001, order dated 28-7-2008 (Pat)] dated 28-7-2008 was not brought to the notice of the learned Single Judge. It is further contended that even if the order dated 10-10-2006 was not set aside, the fact remains that such order of regularisation could not have been passed since the services of the Muharrir have come to an end in 1991 itself. The permanent status could be conferred to those who were in service and not to those whose services had come to an end many years ago. Such an order could not be made the basis of permanent status through the writ court. Such order dated 10-10-2006 is not enforceable in law. The representation having been declined in the light of the Circular dated 16-4-2008, we do not find that the writ petitioners were entitled to any direction to treat them as regular employees.”

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17. We agree with the reasoning of the Division Bench quoted supra.

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20. In other words, the grant of extension to work for some more period to the writ petitioners could never result in conferring on them the status of a permanent employee or/and nor could enable them to seek regularisation in the services unless some Rule had recognised any such right in their favour.

¶263

43. In the case of Ramchander v. A.D.M., (1998) 1

¶264

SCC 183 while referring the rule has observed that in view of the fact that the services of the appellants had been terminated, they will not be eligible for regularization, for ready reference same is being quoted as under:

¶265

“5. We are not examining the correctness or otherwise of this interpretation because, in the present case, the appellants did not fulfil the basic requirement of Rule 4( i ) namely that they should be continuing in service as ad hoc employees in order to be eligible for regularisation. The services of at least some of the appellants were terminated in February 1984. The services of others were terminated in June 1984. In view of the fact that the services of the appellants had been terminated, they will not be eligible for regularisation under the amended Rules of 1984. Those who are not in service cannot be regularised. In the writ petition which was filed, the appellants who were the petitioners, prayed for regularisation. Although they made averments relating to their termination of service, they did not pray for setting aside the orders of termination passed in their cases. So long as the orders of termination stand, they cannot get the benefit of regularisation under the amended Rules of 1984”

¶266

44. Herein, the admitted case of the respondents/writ petitioners is that they have been separated/terminated from service and the said order of separation/termination has also been upheld, in some of the cases, up to the

¶267

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Hon’ble Apex Court and in some of the cases up to this Court.

¶270

45. The question, therefore, would be that when the writ petitioners/respondents were not in service then how can they be regularized in service by inducting them in the regular establishment, rather, the first requirement was to get a declaration holding the separation/termination to be illegal with consequential direction for reinstatement and thereafter the question of regularization which is lacking herein and straightaway the order of regularization has been passed without going into the issue of separation/termination.

¶271

46. The issue of separation/termination, in the facts of the present cases, should not have been considered by the learned Single Judge in view of the fact that the issue of separation/termination has already attained finality.

¶272

47. The further question would be that when the issue of separation/termination has already attained its finality then the employee who is not in service after being separated/terminated, cannot be regularized in service.

¶273

48. Further, the moment one or the other writ petitioners/respondents have been separated/terminated, no occasion is available to them to raise the issue of being appointed against the sanctioned post.

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49. Termination means all past service rendered said to be forfeited and the order of termination attained finality, then it is not available for one or the other writ petitioners to take the ground that they were appointed against the sanctioned post.

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50. The Issue No.(i) is answered as above.

¶278

51. So far as Issue No.(ii) and (iii) are concerned, since both the issues are interlinked and, as such, are being dealt with together.

¶279

52. The argument has been advanced on behalf of the writ petitioners that even accepting that the writ petitioners have been separated/terminated but after passing of the order by the learned Single Judge in W.P.(S) No.2172 of 2014 and analogous cases dated 16.10.2015, the cases have been considered and thereafter fresh decision has been taken by the authority holding appointment of one or the other writ petitioners made not against the sanctioned post.

¶280

53. The fact about passing of the order by the learned Single Judge dated 16.10.2015 in W.P.(S) No.2172 of 2014 admittedly had not been questioned by the Corporation and even by the authorities. The authorities, rather, had acted upon on the basis of the said direction by taking decision afresh by rejecting the claim of regularization being not appointed against the sanctioned post.

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54. But the question which requires consideration herein is that even accepting that the learned Single Judge in its order dated 16.10.2015 passed in W.P.(S) No.2172 of 2014 has passed an order then also on the admitted fact of status of one or the other writ petitioners of separated/terminated employees, there cannot be regularization.

¶284

55. Although the Corporation has considered the issue of regularization on the direction passed by this Court, but the same has also been rejected, therefore, this Court is now proceeding to consider the order passed by the learned Single Judge by way of command for consideration of the issue on the basis of applicability of Rule, 2015.

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56. Such consideration is required keeping the fact into consideration that the order passed by the learned Single Judge dated 16.10.2015 in W.P.(S) No.2172 of 2014 has not been challenged by the appellant Corporation, rather, they have acted by taking decision afresh, therefore, this Court is required to consider the legality and propriety of the impugned decision passed by the authority concerned dated 09.05.2016 circulated vide Memo dated 16.05.2016 keeping the fact into consideration that the order passed by the learned Single Judge based upon which the consideration on merit has been given by passing the impugned order by the authority concerned, having not

¶286

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been challenged before the higher forum and this Court cannot go into the legality and propriety of the said order since the said order is not the subject matter of these appeals.

¶289

57. Therefore, this Court has thought it proper to consider the legality and propriety of the impugned decision taken by the authority which has been reversed by the learned Single Judge.

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58. This Court, before considering the same, needs to refer herein the backdrop on which the judgment has been passed by Hon’ble Apex Court in the case of State of Karnataka v. Uma Devi (3) (Supra), as would be evident from paragraph 7 to 10 which is being referred herein.

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7. These two sets of appeals reflect the cleavage of opinion in the High Court of Karnataka based on the difference in approach in two sets of decisions of this Court leading to a reference of these appeals to the Constitution Bench for decision. The conflict relates to the right, if any, of employees appointed by the State or by its instrumentalities on a temporary basis or on daily wages or casually, to approach the High Court for the issue of a writ of mandamus directing that they be made permanent in appropriate posts, the work of which they were otherwise doing. The claim is essentially based on the fact that they having continued in employment or engaged in the work for a significant length of time, they are entitled to be absorbed in the posts in which they had worked in the department concerned or the authority concerned. There are also more ambitious claims that even if they were not working against a sanctioned post, even if they do not possess the requisite qualification, even if they were not appointed in terms of the procedure prescribed for appointment, and had only recently been engaged, they are entitled to continue and should be directed to be absorbed.

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8. In Civil Appeals Nos. 3595-612 of 1999 the respondents therein who were temporarily engaged on daily wages in the Commercial Taxes Department in some of the districts of the State of Karnataka claim that they worked in the Department based on such engagement for more than 10 years and hence they are entitled to be made permanent employees of the Department, entitled to all the benefits of regular employees. They were engaged for the first time in the years 1985-86 and in the teeth of orders not to make such appointments issued on 3-7-1984. Though the Director of Commercial Taxes recommended that they be absorbed, the Government did not accede to that recommendation. These respondents thereupon approached the Administrative Tribunal in the year 1997 with their claim. The Administrative Tribunal rejected their claim finding that they had not made out a right either to get wages equal to that of others regularly employed or for regularisation. Thus, the applications filed were dismissed. The respondents approached the High Court of Karnataka challenging the decision of the Administrative Tribunal. It is seen that the High Court without really coming to grips with the question falling for decision in the light of the findings of the Administrative Tribunal and the decisions of this Court, proceeded to order that they are entitled to wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service with effect from the dates from which they were respectively appointed. It may be noted that this gave retrospective effect to the judgment of the High Court by more than 12 years. The High Court also issued a command to the State to consider their cases for regularisation within a period of four months from the date of receipt of that order. The High Court seems to have proceeded on the basis that, whether they were appointed before 1-7-1984, a situation covered by the decision of this Court in Dharwad District PWD Literate Daily Wage Employees Assn. v. State of Karnataka [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] and the scheme framed pursuant to the direction thereunder, or subsequently, since they have worked for a period of 10 years, they were entitled to equal pay for equal work from the very inception of their engagement on daily wages and were also entitled to be considered for regularisation in their posts.

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9. Civil Appeals Nos. 1861-2063 of 2001 reflect the other side of the coin. The appellant association with indefinite number of members approached the High Court with a writ petition under Article 226 of the Constitution challenging the order of the Government directing cancellation of appointments of all casual workers/daily-rated workers made after 1-7-1984 and further seeking a direction for the regularisation of all the daily-wagers engaged by the Government of Karnataka and its local bodies. A learned Single Judge of the High Court disposed of the writ petition by granting permission to the petitioners before him, to approach their employers for absorption and regularisation of their services and also for payment of their salaries on a par with the regular workers, by making appropriate representations within the time fixed therein and directing the employers to consider the cases of the claimants for absorption and regularisation in accordance with the observations made by the Supreme Court in similar cases. The State of Karnataka filed appeals against the decision of the learned Single Judge. A Division Bench of the High Court allowed the appeals. It held that the daily-wage employees, employed or engaged either in government departments or other statutory bodies after 1-7-1984, were not entitled to the benefit of the scheme framed by this Court in Dharwad District PWD case [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] referred to earlier. The High Court considered various orders and directions issued by the Government interdicting such engagements or employment and the manner of entry of the various employees. Feeling aggrieved by the dismissal of their claim, the members of the associations have filed these

¶298

10. When these matters came up before a Bench of two Judges, the learned Judges referred the cases to a Bench of three Judges. The order of reference is reported in Secy., State of Karnataka v. Umadevi (1) [(2004) 7 SCC 132 : 2004 SCC (L&S) 935 : (2003) 9 Scale 187] . This Court noticed that in the matter of regularisation of ad hoc employees, there were conflicting decisions by three-Judge Benches of this Court and by two-Judge Benches and hence the question required to be considered by a larger Bench. When the matters came up before a three-Judge Bench, the Bench in turn felt that the matter required consideration by a Constitution Bench in view

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of the conflict and in the light of the arguments raised by the Additional Solicitor General. ---

¶302

33. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency can an ad hoc appointment be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularisation. The cases directing regularisation have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment.

¶303

34. In A. Umarani v. Registrar, Coop. Societies [(2004) 7 SCC 112 : 2004 SCC (L&S) 918] a three-Judge Bench made a survey of the authorities and held that when appointments were made in contravention of mandatory provisions of the Act and statutory rules framed thereunder and by ignoring essential qualifications, the appointments would be illegal and cannot be regularised by the State. The State could not invoke its power under Article 162 of the Constitution to regularise such appointments. This Court also held that regularisation is not and cannot be a mode of recruitment by any State within the meaning of Article 12 of the Constitution or any body or authority governed by a statutory Act or the rules framed thereunder. Regularisation furthermore cannot give permanence to an employee whose services are ad hoc in nature. It was also held that the fact that some persons had been working for a long time would not mean that they had acquired a right for regularisation.

¶304

45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment.

¶305

He accepts the employment with open eyes. It may be true that he is not in a position to bargain—not at arm's length—since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the

¶306

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constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.

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59. It is evident from the aforesaid paragraph that the reason for rendering such judgment by the Hon’ble Apex Court is to put restriction upon the backdoor entry. However, after giving the consideration about illegal entry

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and bifurcating the recruitment/appointment in two categories i.e., irregular and illegal, parameter has been fixed at para-53, i.e., if the appointment is irregular, the same can be regularized depending upon the condition of more than ten years continuous service without any aid of the order of the court and the appointment being made against the sanctioned post. Such employees to be regularized by the State by taking one time exercise to be completed within six months from the date of judgment passed by the Hon’ble Apex Court in the said case, for ready reference Para-53 is being referred hereunder as :-

¶313

53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken

¶314

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to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.

¶317

60. The irregular and illegal appointment has been taken note by the Hon’ble Apex Court in the aforesaid paragraph as also in the case of State of Karnataka v. M.L. Kesari [(2010) 9 SCC 247] .

¶318

61. The irregular appointment has been held to be an appointment where the irregularity is curable while the appointment where the illegality is not curable, has been held to be illegal appointment. The irregular appointment is the subject matter of paragraph -53.

¶319

62. Subsequent to he said judgment, after creation of the State of Jharkhand on 15.11.2000, the issue crept up that how the ten years will be said to be completed by way of continuous service by one or the other employees working in the territorial jurisdiction of the State of Jharkhand since the judgment rendered in State of Karnataka v. Uma Devi (3) (Supra) by the Hon’ble Apex Court speaks with respect to the consideration of the issue of regularization of one or the other engagees who have

¶320

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completed ten years of continuous service on the date of the judgment i.e.,10.04.2006.

¶323

63. The said issue has been considered by Hon’ble Apex Court in the case of Narendra Kumar Tiwari Vs. State of Jharkhand and others (supra) wherein a direction was issued to the State of Jharkhand to formulate a rule and in pursuance thereto, a rule was formulated as Rule, 2015 carving out the conditions for the purpose of regularization of one or the other employees, the relevant paragraph of the said judgment is being quoted hereunder as :-

¶324

"8. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753], is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15-11-2000 and the cut-off date was fixed as 10-4-2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.

¶325

The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise -- the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance.

¶326

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¶328

Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct, etc.”

¶329

64. The case of the one or the other writ petitioners has been considered by the authority in the light of the order passed by the learned Single Judge but their appointment has been found to be not against the sanctioned post and hence the claim for regularization has been rejected.

¶330

65. Sanctioned post means the post which has been created by the State Government under the process of discharge of business as provided under the Rules of Executive Business. The State Government is required to concur for sanction of the post with the concurrence of the Finance Department by taking into consideration the issue of salary etc.

¶331

66. Sanctioning the post is always the domain of the State and not vested in one or the other departments since requirement of concurrence by the Finance Department is there, meaning thereby, the post is to be created only by the State Government then only it will be said to be sanctioned post.

¶332

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¶334

67. Further, a post if not sanctioned, then there cannot be any presumption merely on the ground of benefit of pay scale being given to the concerned employee or the revision of pay scale being extended or the seniority list has been prepared since these parameters cannot be taken into consideration to come to the conclusion that the post has been created. If these parameters will be followed for the purpose of coming to the conclusion of creation of post, then the same will be said to be based upon he presumption and surmises in absence of any decision taken by the State, being the competent body to create the post.

¶335

68. Learned counsel appearing for the appellant has tried to demonstrate by referring Annexure-D to the counter affidavit made part of the paper book wherein reference of different posts has been given including the post of the present writ petitioners.

¶336

69. We have gone through the said document and found therefrom that the posts upon which the writ petitioners are claiming to be engaged, has been shown as 172 posts of Forest Produce Overseers, but the question herein is as to whether the appointment of one or the other writ petitioners has been made against the sanctioned post or not.

¶337

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¶339

70. There is no averment to that effect by the appellant based upon the relevant document save and except reliance is being placed upon Annexure-D appended to the counter affidavit filed before the learned writ court.

¶340

71. As we have already referred hereinabove that the post cannot be presumed to be sanctioned one, rather, there must be valid document to that effect to suggest that the posts had been sanctioned against which one or the other engagees were engaged for the purpose of consideration in the light of the observation made at Para53 of judgment rendered in the case of State of Karnataka v. Uma Devi (3) (Supra).

¶341

72. This Court has not found any material available on record, rather, only material available is document dated 16.01.1987 showing the reference of 172 posts of Forest Produce Overseers which has been taken note by the learned Single Judge.

¶342

73. This Court has failed to understand on what basis the document dated 16.11.1987 showing the availability of 172 posts has been considered by the learned Single Judge for the purpose of interfering with the impugned order in absence of any specific document put forth on behalf of the writ petitioners showing their appointment made against the sanctioned post.

¶343

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¶345

74. The learned Single Judge has further considered the fact about the appointment being made on the sanctioned post on consideration of the fact of the pay scale being given to one or the other writ petitioner, services being confirmed, preparation of seniority list and the benefit of pay revision having been given in their favour. But the said parameter cannot be said to be adequate to come to the conclusion that the posts will be said to be sanctioned merely on the ground of pay scale, confirmation of services, preparation of seniority list and the benefit of pay revision, rather, there must be a valid order to that effect by the State Government.

¶346

75. The learned Single Judge has not considered the fact that once the writ petitioners have been separated/terminated then how can they be regularized in service.

¶347

76. The consideration has also not been given in right perspective by passing the order of regularization without appreciating its effect that if one or the other writ petitioners will be regularized then they will be regularized from the date of their engagement and what will happen to the order of separation amounting to termination which has already attained its finality by way of Judicial order.

¶348

77. Consideration further has not been given that the order of separation/termination having attained its finality

¶349

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even then the order of regularization has been passed that too by not directing the State to consider, rather, in one line the word direction to consider is there but in the subsequent line the direction has been passed to grant all consequential benefits by regularizing the writ petitioners, for ready reference, the relevant part of the paragraph of the said order is being referred herein :-

¶352

“… … … The respondents are directed to consider the case of each individual petitioners and thereafter pass order for regularization of their services from the date they have been stopped from working, with all consequential benefits. … …” 78. The Hon’ble Apex Court time and again has laid down that there cannot be any direction under Article 226 of the Constitution of India by way of command to regularize, rather, it is the domain of the State authorities to consider the issue of regularization depending upon the facts about the nature of appointment if made against the sanctioned posts or not.

¶353

79. The Hon’ble Apex Court in the case School Education Deptt., Chennai v. R. Govindaswamy , (2014) 4 SCC 769 while referring the ratio rendered by the Hon’ble Apex Court in the case of State of Rajasthan v. Daya Lal [ State of Rajasthan v. Daya Lal , (2011) 2 SCC 429 has categorically held that the High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation,

¶354

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absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules, for ready reference the relevant paragraph is being quoted as under:

¶357

8.This Court in State of Rajasthan v. Daya Lal [ State of Rajasthan v. Daya Lal , (2011) 2 SCC 429 : (2011) 1 SCC (L&S) 340 : AIR 2011 SC 1193] has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and laid down well-settled principles relating to regularisation and parity in pay relevant in the context of the issues involved therein. The same are as under : (SCC p. 435, para 12)

¶358

“( i ) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.

¶359

80. This Court, on consideration as per the discussion made hereinabove, is of the view that both the issues are to be answered against the writ petitioners/respondents.

¶360

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¶362

81. Learned counsel appearing for the writ

¶363

petitioners/respondents has referred Annexure-A appended to the counter affidavit filed in L.P.A. No.437 of 2024 upon which learned counsel for the appellants has also relied.

¶364

82. This Court has gone through the said document which is the basis of engagement of one or the other writ petitioners in job. It is evident therefrom that the State has decided to engage the persons as seasonal workers for the purpose of collection of Kendu leaves on the basis of minimum wages as notified by the Government, for ready reference the relevant part of the said notification is being referred herein :-

¶365

izs"kd]

¶366

Jh ,l0 ,u0 ih0 ,u0 flUgk] ljdkj ds lfpoA

¶367

lsok esa]

¶368

iVuk&800015] fnukad 13@14 ekpZ] 1987 fo"k;%&iwjs jkT; esa o"kZ 1987 ekSle ls dsUnq iÙkh ds O;kikj ¼laxzg.k ,oa foi.ku½ dk dk;Z ou fuxe dks lkSaius ds lEcU/k esaA

¶369

egk’k;]

¶370

funsZ’kkuqlkj mi;qZDr fo"k; esa ljdkj }kjk yksd fgr esa fuEukafdr

¶371

fu.kZ; fy;s x;s gSa %&

¶372

¼1½ o"kZ 1987&88 ls iwjs jkT; esa dsUnq iÙkk ds O;kikj ¼laxzg.k ,oa foi.ku½ djus gsrq fcgkj jkT; ou fodkl fuxe fy0 dks ljdkj ¼ou ,oa i;kZoj.k foHkkx½ viuk vfHkdÙkkZ fu;qDr djrh gSA

¶373

¼2½ o"kZ 1987 ekSle ls iwjs jkT; esa dsUnq iÙkh O;kikj ¼laxzg.k ,oa foi.ku½ fcgkj jkT; ou fodkl fuxe fy0 }kjk lEikfnr fd;k tk;sxkA

¶374

¼3½ dsUnq iÙkh O;kikj ¼laxzg.k ,oa foi.ku½ ou fodkl fuxe }kjk okf.kT; ds vk/kkj ij ¼dkWef’kZ;y ykbZu½ fd;k tk;sxk rFkk laxzg.k ,oa foi.ku lEcU/kh O;; fuxe ds }kjk ogu fd;s tk;saxsA fuxe blds fy, 'kh?kz bUQzkLVªDpj rS;kj djus dh O;oLFkk djsxkA

¶375

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¶377

¼4½ bl dk;Z esa yxs etnwjksa dks fu;ekuqdwy U;wure ,oa leqfpr ¼Qs;j½ etnwjh ds Hkqxrku dh O;oLFkk dh tk;sxhA

¶378

¼5½ ou fuxe }kjk bl dk;Z ds lapkyu gsrq ou ,oa i;kZoj.k foHkkx esa dk;Zjr inkf/kdkfj;ksa ,oa deZpkfj;ksa dks leqfpr ekuns; fn;k tk;sxk tks muds }kjk fu/kkZfjr dk;Z ij fuHkZj djsxkA

¶379

¼6½ iz/kku eq[; ou laj{kd] fcgkj mi;qZDr dk;ksZa ds lEiknu gsrq vuqHkoh inkf/kdkfj;ksa ,oa deZpkfj;ksa dh lsok ou fuxe dks lkSisaxsA

¶380

¼7½ iz/kku eq[; ou laj{kd] fcgkj bl vuqns’k ds lfØ; vuqikyu gsrq lHkh eq[; ou laj{kd] lHkh vij eq[; ou laj{kd] lHkh ou laj{kd ,oa lHkh ou izeaMy inkf/kdkfj;ksa dks bl dk;Z esa lHkh izdkj dh lfØ; lgk;rk iznku djus dk vkns’k vius Lrj ls fuxZr djsaxsA

¶381

¼8½ ou fodkl fuxe dks bl dk;Z ds lQy lapkyu gsrq ou Hkouksa dk iz;ksx vLFkk;h rkSj ij djus dh vuqefr nh tkrh gSA

¶382

¼9½ ou fodkl fuxe bl dk;Z ds lqn<+ :i ls dk;kZUo;u gsrq fdlh Hkh jk"Vªh;dr cSad ls vko’;drkuqlkj dS’k ØsfMV@cSad _.k dh O;oLFkk djsxkA fuxe }kjk fy;s tkus okys _.k dh xkjaVh dh O;oLFkk jkT; ljdkj ¼ou ,oa i;kZoj.k foHkkx½ }kjk dh tk;sxhA

¶383

¼10½ dsUnq iÙkh O;kikj ¼laxzg.k ,oa foi.ku½ ds en esa ljdkj dks ns; jktLo ds fu/kkZj.k dk izLrko iz/kku eq[; ou laj{kd fcgkj ,oa izcUO/k funs’kd] ou fodkl fuxe }kjk la;qDr :i ls ljdkj dks lefiZr fd;k tk;sxkA mlds vkyksd esa vkns’k i`Fkd :i ls fuxZr fd;k tk;sxkA

¶384

¼11½ ,slh bdkbzZ;ksa ds fo"k; esa ftudks o"kZ 1987 ds fy, ;k muds fdlh va’k ds fy, ljdkj }kjk iwoZ esa yht nh xbZ gks vyx ls leqfpr vkns’k fuxZr fd;k tk;sxkA

¶385

mi;qZDr lHkh fcUnqvksa ds vkyksd esa vuqjks/k gS fd izkFkfedrk ds vk/kkj ij dkjZokbZ dh tk;A

¶386

83. The said notification being the basis of engagement upon which the writ petitioners are also relying upon and the said decision since referred about making of payment of minimum wage and the status of one or the other writ petitioners has been decided to be of seasonal worker for a period of three months then how can they be regularized in service in such a situation where their services have been

¶387

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terminated being not required and further they were engaged on the basis of minimum wages.

¶390

84. This Court although has referred hereinabove regarding the issue of the post having not been sanctioned but even in a case where post is not sanctioned, the Hon'ble Apex Court in the case of Jaggo v. Union of India and Others reported in 2024 SCC OnLine SC 3826 has directed for regularization of the services of the concerned employee in the regular establishment by taking into consideration the long continued service by considering the nature of work to be perennial, the relevant paragraph of the aforesaid judgment is being referred here in :-

¶391

“27. In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country.”

¶392

85. But, this Court even cannot apply the ratio of the aforesaid judgment passed by the Hon'ble Apex Court in

¶393

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¶395

the facts of the present case where it is the admitted case of the respondents/writ petitioners that they had already been separated from service amounting to termination for which some of the writ petitioners had gone up to the Hon'ble Apex Court and some of the writ petitioners up to this Court wherein the order of separation has attained finality.

¶396

86. Therefore, the principle which has been propounded in the judgment rendered in the case of Jaggo v. Union of India and Others (Supra) is not of any aid to the writ petitioners in the facts of the aforesaid case reason being that the respondents/writ petitioners have been separated from service amounting to termination and the said decision of the State has attained its finality by the court of law.

¶397

87. Even accepting the argument advanced on behalf of the respondents/writ petitioners that the order passed by the learned Single Judge dated 16.10.2015 in W.P.(S) No.2172 of 2014 has attained its finality but if the intent of the order will be seen, the only direction was to consider the case of the writ petitioners.

¶398

88. Consideration always means active application of mind and consideration does not mean that any positive decision if taken then only it will be said to be consideration in the eyes of law.

¶399

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¶401

89. The word “consideration” has also been defined by the Hon'ble Apex Court in the case of Chairman, Life Insurance Corporation of India and Others v. A. Masilamani reported in (2013) 6 SCC 530 wherein at paragraph 19 it has been observed which is being quoted hereunder as:-

¶402

“ 19. The word “consider” is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order. (Vide Indian Oil Corpn. Ltd. v. Santosh Kumar [(2006) 11 SCC 147] and Bhikhubhai Vithlabhai Patel v. State of Gujarat [(2008) 4 SCC 144] .)

¶403

90. The impugned order very much reflects that the

¶404

consideration is there by active application of mind by the authorities wherein the reason for rejecting the claim of the writ petitioners has been shown to be the post having not been sanctioned and primarily the writ petitioners were not

¶405

in service at the time when the consideration for regularization was being done by the authority in pursuance to the aforesaid order.

¶406

91. This Court, after having answered the issues as above and based upon the reasons, is of the view that the learned Single Judge has not considered these aspects of

¶407

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¶409

the matter and has interfered with the impugned order with a direction to consider the case of each individual petitioners and thereafter pass order for regularization of their services from the date they have been stopped from working, with all consequential benefits, which according to our considered view, cannot be held to be correct.

¶410

92. Accordingly, the impugned order needs interference.

¶411

93. The instant appeals are allowed. The impugned order dated 15.12.2023 passed in W.P.(S) No.4561 of 2016, W.P.(S) No.6127 of 2011, W.P.(S) No.1374 of 2017, W.P.(S) No.1939 of 2017, W.P.(S) No.2257 of 2017, W.P.(S) No.6387 of 2017 and W.P.(S) No.6496 of 2017 is quashed and set aside.

¶412

94. In consequence thereof, the writ petitions are dismissed.

¶413

95. Pending interlocutory application, if any, also stands disposed of.

¶414

I agree (Sujit Narayan Prasad, J.)

¶415

(Rajesh Kumar, J.)

¶416

(Rajesh Kumar, J.)

¶417

Birendra/ A.F.R.