Shaikh Abdul Azeez Vs the State of Jharkhand

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2025:JHHC:30679

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(S) No. 1884 of 2025

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Shaikh Abdul Azeez, aged about 71 years, S/o Late Shaikh Abdul, R/o-Village- Gomoh, P.O.+ P.S.- Ghuritilaya, Dist.Koderma, Jharkhand ......Petitioner

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Versus

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The State of Jharkhand.

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The Secretary, Commercial Taxation, Government of Jharkhand, P.O.& P.S.-Dhurwa, Dist. Ranchi/Jharkhand.

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The Commissioner, Commercial Taxation, Government of Jharkhand, P.O.& P.S.-Dhurwa, Dist. Ranchi/ Jharkhand.

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The Additional Commissioner (Administration), Hazaribagh Division, Hazaribagh, P.O. And P.S.- Hazaribagh, DistrictHazaribagh, Jharkhand.

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The Joint Commissioner, Commercial Taxation, Koderma Circle, P.O. & P.S.- Dist. Koderma, Jharkhand

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….. Respondents

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with

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W.P.(S) No. 2086 of 2025

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Vimal Kumar Singh, Aged About 69 years, Son of Late Sitaram Singh, Resident of Bishnupuri, Balaji Colony, Gali No. B/2, P.O.Koderma, P.S.-Katkamdag, District-Hazaribagh, Jharkhand …..Petitioner

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Versus

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The State of Jharkhand.

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The Secretary, Commercial Taxation, Government of Jharkhand, P.O.& P.S.-Dhurwa, Dist. Ranchi/Jharkhand.

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The Commissioner, Commercial Taxation, Government of Jharkhand, P.O.& P.S.-Dhurwa, Dist. Ranchi/ Jharkhand.

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The Additional Commissioner (Administration), Hazaribagh Division, Hazaribagh, P.O And P.S.- Hazaribagh, DistrictHazaribagh, Jharkhand ….Respondents

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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner(s): Mr. Saurav Arun, Advocate Mr. Bhanu Kumar No. 1, Advocate

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For the Resp.-State : Mr. Mithilesh Singh, G.A.-IV

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[in W.P(S) No. 1884 of 2025] Mr. Kunal Chandra Suman, A.C to G.P.-II [in W.P(S) No. 1884 of 2025]

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C.A.V. ON 01.07.2025 PRONOUNCED ON 24/09/ 2025

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Since both these writ petitions are having common issues involved, as such, with consent of the parties; both were heard together and being disposed of by this common judgment.

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1

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2025:JHHC:30679

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2. For brevity, the prayers made in the respective petitions are mentioned herein below:

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W.P.(S) No. 1884 of 2025

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The instant writ petition has been preferred by

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the Petitioner for the following reliefs:

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a) For a direction upon the respondents to absorb/confirm the service of the petitioner as the petitioner has been appointed in accordance with Law against sanctioned and vacant post and also on the ground that the issue is no more res integra affirmed up to Hon'ble Apex Court.

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b) Further for a direction upon the respondents that after absorbing/confirmation of the service of the petitioner, consider the case of the petitioner for grant of Time Bound Promotion and pay 1^st , 2^nd ACP and 3^rd MACP with its arrear.

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c) For a direction upon the respondents to consider the case of the petitioner for absorption in light of similar short of litigation and also in view of the order passed by this Hon'ble Court where the Enquiry Report dated 11.2.2016 (as contained in Annexure-7 of the writ) has been set aside in WP(S) No.4199/2011, hence the respondents ought to have re-considered the case of the petitioner for absorption/confirmation of service as the petitioner has already retired on 31.07.2013 with pension and retiral benefits.

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d) For a direction upon the respondents to confirm the service of the petitioner from the initial date of appointment;

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e) For quashing of the letter dated 19.03.2013 (as contained in Annexure-5 of the writ) by which claim of the petitioner has been rejected as when petitioner moved earlier before this Hon’ble Court without assigning the reason as the issue has been set at rest up to the Hon’ble Supreme Court.

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f) For quashing of the enquiry report dated 11.02.2016 (as contained in Annexure-7 of the writ) so far it relates to petitioner by which claim of the petitioner has been rejected on the ground that initially petitioner was not working against the sanctioned post, when the issue has been set at rest up to Hon’ble Apex Court, in spite of that benefit not extended to petitioner.

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W.P.(S) No. 2086 of 2025

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The instant writ petition has been preferred by

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the Petitioner for the following reliefs:

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a) For a direction upon the respondents to absorb/confirm the service of the petitioner as the petitioner has been appointed in accordance with Law against sanctioned and vacant post and also on the ground that the issue is no more res integra affirmed up to Hon'ble Apex Court.

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b) Further for a direction upon the respondents that after absorbing/confirmation of the service of the petitioner, consider the case of the petitioner for grant of Time Bound Promotion and pay 1^st , 2^nd ACP and 3^rd MACP with its arrear.

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2

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2025:JHHC:30679

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c) For a direction upon the respondents to consider the case of the petitioner for absorption in light of similar short of litigation and also in view of the order passed by this Hon'ble Court where the Enquiry Report dated 11.2.2016 (as contained in Annexure-6 ) has been set aside in WP(S) No.4199/2011, hence the respondents ought to have re-considered the case of the petitioner for absorption/confirmation of service as the petitioner has already retired on 31.12.2015 with pension and retiral benefits.

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d) For a direction upon the respondents to confirm the service of the petitioner from the initial date of appointment;

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e) For quashing of the enquiry report dated 11.02.2016 (as contained in Annexure-6) so far it relates to petitioner’s by which claim of the petitioner has been rejected on the ground that initially petitioner was not working against the sanctioned post, when the issue has been set at rest up to Hon’ble Apex Court, in spite of that benefit not extended to petitioner.

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3. Briefly stated, the Petitioners, namely Sheikh Abdul Azeez and Vimal Kumar Singh, were initially appointed on 01.02.1972 and 23.09.1981, respectively as “Peon” and they retired on 31.07.2013 and 31.12.2015 respectively. After retirement, they received pension, gratuity, leave encashment, provident fund, and all revisions of pay scale throughout their entire service.

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A committee was constituted in compliance of the order passed in WP(S) No. 4115 of 2015 which also rejected the claim of these petitioners for their absorption vide decision/report dated 11.02.2016. However, the Enquiry Report by the aforementioned Committee has been set aside and quashed by this Court vide order dated 25.08.2017 passed in WP(S) No. 2678 of 2017 ; in spite of that, the Respondents did not absorbed/confirmed the services of the petitioners. Hence, these writ applications.

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4. Learned counsel for the Petitioners has submitted that the petitioners were entitled to get the benefits of ACP/MACP as they have worked for about four decades, but the said benefits have not been given to the petitioners.

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3

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2025:JHHC:30679

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Further, it has been submitted that the services of the persons similarly situated to these Petitioners were confirmed which is evident from the Office Order vide Memo dated 26.02.2005. It has also been submitted that similar relief has been granted by this Court in the case of Yogendra Prasad v. The State of Jharkhand¹ dated 01.07.2008 and Surendra Choudhary v. State of Jharkhand² dated 13.11.2013.

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Subsequently, vide office order dated 29.09.2010 itself the said Yogendra Prasad has been granted the benefits of ACP and his services have been confirmed from the date of appointment, as such these writ petitions should also be disposed of in line with similar judgments.

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5. Per contra, learned counsel for the Respondents has submitted that the appointment of these Petitioners so made were investigated by the Committee formed under the chairmanship of Secretary cum Commissioner, Commercial Tax Department, for regularization of irregularly appointed and the Committee so formed found it to be against Clauses 3(ka) of the Notification No. 1348 issued by the Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand in compliance of the judgment passed by the Hon’ble Supreme Court in Secretary, State of Karnataka v. Uma Devi³ and hence, their services were not found fit to be confirmed.

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It has been further submitted that as per Counter Affidavit filed in WP(S) No. 1884 of 2025; the post created for the services of these petitioners were not sanctioned. Further, reservation rules were also not followed and the competent authority for appointment was

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1 WP(S) No. 5259 of 2007

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2 WP(S) No. 1437 of 2013

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3 (2006) 4 SCC 1

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4

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2025:JHHC:30679

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Commercial Tax Commissioner; however, the appointment of these petitioners were made by the Joint Commissioner who was not the competent authority.

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6. Having heard the learned counsel for the rival parties, and after going through the materials on record; it is not in dispute that the Petitioners were appointed as “Peon” and retired after long service span of about four decades. After their retirement, they were extended all service benefits including pension, gratuity, leave encashment, provident fund and pay revisions. Thus, the Respondents were required to take decision regarding absorption of these Petitioners in accordance with law in view of the long continuation of their service.

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However, from the impugned order it transpires that the rejection of their claim is primarily premised on the Enquiry Report of the Committee dated 11.02.2016 which has been already been set aside by this Court in W.P.(S) No. 2678 of 2017 . The quashing of the Enquiry Report and subsequent orders has attained finality, having been affirmed by the Hon’ble Division Bench in The State of Jharkhand v. Ashok Kumar⁴ on 03.02.2022 and further upheld by the Hon’ble Supreme Court in Special Leave to Appeal No. 15757 of 2022 disposed of on 16.09.2022.

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Thus, it is evident that even though the Committee, constituted as per the order in WP(S) No. 4115 of 2015 dated 09.09.2015, which has rejected the claim of these Petitioners for confirmation of service on the ground that they were not appointed against sanctioned and vacant posts and reservation policy was not followed and also they were appointed by the incompetent authority; however, as stated hereinabove, the said Enquiry Committee Report which has rejected the claim was

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4 LPA No. 121 of 2021

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5

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already quashed by the Writ Court in W.P.(S) No. 2678 of 2017 , and which has also attained finality up till Hon’ble Apex Court.

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7. Further, it is also an admitted case, that the services of the similarly situated persons with that of the present Petitioners were confirmed which is evident from the Office Order vide Memo dated 26.02.2005 and this Court fails to understand why the present petitioners are being treated differently by the respondent authorities.

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Moreover, as stated hereinabove, in the case i.e. in WP(S) No. 3025 of 2019 which was disposed of on 10.12.2020 in favour of that petitioner and also affirmed by the Division Bench in LPA No. 121 of 2021 on 03.02.2022 and was confirmed by the Hon’ble Supreme Court in Special Leave to Appeal No. 15757 of 2022 disposed of on 16.09.2022. In the said case of LPA No. 121 of 2021⁵ , the Division Bench of this Court has set aside the order of rejection of regularization; the relevant paragraphs of the said case are quoted herein-below:

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“ 10. …The question herein is that after rendering service for a period of about 41 years and after retirement of an employee from service if the plea of appointment on the non-sanctioned post will be allowed to be agitated by State-respondent while such plea has not been agitated with respect to other similarly situated employees, would it hit Article 14 of the Constitution of India as Article 14 stipulates that there cannot be any discrimination among similarly situated employees.

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11. It is settled position of law that there cannot be any discrimination amongst similarly situated can be treated employees, however, the persons differently in a case of reasonable classification and in that circumstance the principle of Article 14 will not come into play. But, if the discrimination is based on unreasonable classification, Article 14 will come into play as has been held by Hon'ble Apex Court in State of Jammu & Kashmir vs. Triloki Nath Khosa and Ors., (1974) 1 SCC 19 … ”

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8. Recently, the Division Bench of this Court has again dealt a similar issue in the case of Rajesh Kumar

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5 The State of Jharkhand v. Ashok Kumar

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6

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2025:JHHC:30679

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Verma v. State of Jharkhand⁶ ; the relevant paragraphs are quoted herein-below:

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“ 46. In Narendra Kumar Tiwari v. State of Jharkhand the Supreme Court considered similar conduct on the part of the State of Jharkhand of continuing with a regular appointment for almost a decade after the decision in Uma Devi (3) (1 supra) and held that the State believes that it was all right to continue with the irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed.

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It held that this is nothing but a form of exploitation of the employees by not giving them the benefits of regularization and that this is precisely what the judgment in Uma Devi (3) (supra) and the judgment in State of Karnataka v. M.L. Kesari sought to avoid.

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It held that if a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Uma Devi (3) (2 supra), is to be taken into consideration, then no irregularly appointed employee of the State of Jharkhand could ever be regularized since that State came into existence only on 15.11.2000 and the cutoff date was fixed as 10.04.2006.

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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.

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It also opined that it was not good governance on the part of the State of Jharkhand to short circuit the process of regular appointments and instead make appointments on an irregular basis.

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It held that Regularization Rules must be given a pragmatic interpretation and if the appellants in that case have completed ten years of service on the date of promulgation of the Regularization Rules, they ought to be given the benefit of the service rendered by them, unless there is some valid objection to their regularization like misconduct etc.

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The Court specifically directed the State of Jharkhand to henceforth consider making regular appointments only and dropping the idea of making irregular appointments so as to short circuit the process of regular appointments.

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52. The stand of the respondents that there are no sanctioned posts of computer operators also cannot be countenanced for such posts do not fall from heaven. It is the duty of the State to create such posts if they are needed. In Nihal Singh v. State of Punjab, a similar plea was rejected. The Court held:

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“ 18. Coming to the judgment of the Division Bench of the High Court of Punjab & Haryana in LPA No. 209 of 1992 where the claims for

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6 2024 SCC OnLine Jhar 4051

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2025:JHHC:30679

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regularisation of the similarly situated persons were rejected on the ground that no regular cadre or sanctioned posts are available for regularisation of their services, the High Court may be factually right in recording that there is no regularly constituted cadre and sanctioned posts against which recruitments of persons like the appellants herein were made. However, that does not conclusively decide the issue on hand. The creation of a cadre or sanctioning of posts for a cadre is a matter exclusively within the authority of the State. That the State did not choose to create a cadre but chose to make appointments of persons creating contractual relationship only demonstrates the arbitrary nature of the exercise of the power available under Section 17 of the Act… ”

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9. Accordingly, in light of the above discussion and in line with the judgments rendered in the cases of Rajesh Kumar Verma (supra), Yogendra Prasad (supra), Surendra Choudhary (supra), and Ashok Kumar (supra) , these writ petitions deserve to be allowed.

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Accordingly, the impugned letter dated 19.03.2013 rejecting the Petitioners’ claim for regularisation and also the Enquiry Report dated 11.02.2016 to the extent it relates to these Petitioners, are hereby quashed.

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The concerned Respondent is directed to regularise the service of these Petitioners as absorbed/confirmed and after verification of records calculate the monetary benefits including ACP/MACP by passing an order in the line of above referred judgments.

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The entire exercise shall be completed within a period of eight weeks from the date of receipt/production of this order.

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10. Consequently, the instant writ applications stand allowed and pending I.A., if any, is also closed.

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(Deepak Roshan, J.)

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Jk NAFR/A.F.R

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Shaikh Abdul Azeez v. the State of Jharkhand

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Shaikh Abdul Azeez v. the State of Jharkhand

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