Service Law; State Vs. Arun Kumar Mishra [Jharkhand High Court, 25-08-2016]

Service Law – State Service – Back Door Entry – Appointment on a temporary or ad hoc basis – Writ Petition for Regularization and seeking Age Relaxation – Such type of back-door entrant cannot be given any relief by the State of Jharkhand, otherwise, it will lead further chaos in the State of Jharkhand. Such type of back-door entrant must be forthwith removed from service, so that in a public employment, properly selected candidates can be appointed on merits. It has become fashion in “the State” within the meaning of Article 12 of the Constitution of India to appoint such type of back-door entrants. It is now high time for “the State” to initiate action against those persons who have given them appointment. In taking action against those administrative officers who are giving such type of illegal appointment, the State of Jharkhand has consistently failed. These aspects of the matter have not been properly appreciated by the learned Single Judge.


IN THE HIGH COURT OF JHARKHAND AT RANCHI

CORAM: HON’BLE MR. JUSTICE D. N. PATEL AND HON’BLE MR. JUSTICE AMITAV K. GUPTA

L.P.A. No. 314 of 2014 With I.A. Nos.4429/2014 & 4430/2014

25th July, 2016

1. The State of Jharkhand through the Deputy Commissioner, Pakur 2. The Deputy Commissioner, Pakur

… … … … … … Appellants

Versus

1. Arun Kumar Mishra, S/o Sri Krishna Prasad Mishra, R/o Village & P.O.- Fuljhinjhari,m P.S. Pakuria, Distt- Pakur 2. The Block Development Officer, Pakuria, District – Pakur 3. The Chief Medical officer, Pakur 4. The In-charge Medical Officer, Primary Health Centre, Pakuria, District – Pakur.

… … … … … … Respondents —— —–

For the Appellant: M/s. Kumar Sundaram, J.C. to A.A.G. For the Respondent no.1: M/s. Someshwar Roy

Oral Judgment

Per D.N. Patel, J.

I.A. No.4429 of 2014

1) This interlocutory application under Section 5 of the Limitation Act has been filed by the appellant for condonation of delay of 275 days in preferring the instant appeal.

2) Having heard learned counsel and looking to the reasons stated in paragraphs 4, 5 and 6 of the interlocutory application, there are reasonable reasons for condoning the delay in preferring the appeal.

3) Accordingly, I.A. No. 4429 of 2014 is allowed and delay in filing the instant appeal is condoned. L.P.A. No.314 of 2014

4) This Letters Patent Appeal has been preferred by the original respondent No.1 in W.P. (S) No. 1381 of 2013, as, the writ petition was preferred by the present respondent No.1 seeking regularization in the services of the State of Jharkhand and for age relaxation pursuant to advertisement in the year 2010 and the age relaxation has been granted by the learned Single Judge by an order dated 22.10.2013 and, hence, 2 L.P.A. No.314 of 2014 the present Letters Patent Appeal has been preferred by the original respondent No.1-State of Jharkhand.

5) Counsel for the appellant-State of Jharkhand submitted that the respondent (original petitioner) was appointed on 27th June, 1998 as Voluntary Health Worker in Primary health Centre, Pakuria, District – Pakur. He was appointed as Voluntary Worker on an honorarium of Rs.50/- per month to be paid to this respondent (original petitioner) looking to Annexure 7 of this Letters Patent Appeal. Thus, the respondent was never appointed against any permanent post, nor he was given any pay scale, nor he was daily-rated worker, nor he was a casual worker, but, only he was a Voluntary Health Worker and that too, on an honorarium of Rs.50/- per monthly only. There was no advertisement and no selection process was ever followed for the so-called appointment of the respondent (original petitioner). It was absolutely a back-door entrance. Counsel for the appellant further submitted that he worked only upto 28th February, 2002, as stated in the counter affidavit paragraph 7 filed by the appellant-State. Thereafter, advertisement was given in the year 2010 and a priority was given to Class-III and Class-IV employees who were appointed as daily-rated workers, but, this respondent (original petitioner) was not covered by the said clause for whom age relaxation was to be given. This matter has not been properly appreciated by the learned Single Judge and, hence, the judgment and order dated 22.10.2013 delivered by the learned Single Judge in W.P. (S) No.1381 of 2013 deserves to be quashed and set aside.

6) Counsel for the respondent (original petitioner) submitted that in fact this respondent was appointed as per the appointment letter at Annexure 1 dated 27th June, 1998. Thereafter, he worked for several years and, therefore, no error has been committed by the learned Single Judge in granting age relaxation for the advertisement published in the year 2010. It is also submitted by the counsel for the respondent that similarly situated another person Fransis Soren was appointed as Driver in the year 2005 and, he was given age relaxation. This aspect of the matter has also been properly appreciated by the learned Single Judge and, hence, this Court may not interfere in the order passed by learned Single Judge and this Letters Patent Appeal may not be entertained by this Court.

REASONS

7) Having heard learned counsels for both sides and looking to the facts and circumstances of the case, we, hereby, quash and set aside the judgment and order delivered by learned Single Judge in W.P. (S) No.1381 of 2013 order dated 22nd October, 2013 mainly for the following facts and reasons: –

(i) The respondent is original petitioner in W.P. (S) No.1381 of 2013 who preferred the writ petition for regularization and seeking age relaxation in the advertisement of the year 2010.

(ii) It appears from the facts of the case that the respondent was appointed as Voluntary Health Worker on 27th June, 1998 at Primary Health Centre, Pakuria (District Pakur). He was to be paid Rs.50/- as honorarium per month. He worked, only for the period running from 27.06.1998 to 28.02.2002.

(iii) Thus, it appears that the respondent was never appointed in pursuance of any public advertisement, nor on any substantive post, nor on any pay scale and absolutely he is a back-door entrant. Even otherwise also, looking to his appointment letter at Annexure 1, the respondent (original petitioner) was never an employee in a regular course of the appellant-State of Jharkhand.

(iv) It further appears from the counter affidavit filed by the appellant-State in the writ petition, looking to paragraph 7 which reads as under: –

“7. That it is stated and submitted that the Petitioner worked as Voluntary Worker till 28.02.2002 at Primary Health Centre, Pakuria and against the said work the stipulated remuneration was given to him, which will be evident from Bill No.163 and Bill No.144. A photocopy of the Bill No.163 and Bill No.144 is being annexed herewith and marked as Annexure-B.”

(v) In view of the aforesaid facts, it appears that the respondent (original petitioner) has worked as Voluntary Health Worker on an honorarium of Rs.50/ – per month only upto 28th February, 2002 and nothing beyond that.

(vi) It further appears from the facts of the case that there was an advertisement given in the year 2010 in which age relaxation was to be given to Class-III and Class-IV employees who were appointed as daily-rated workers. As this respondent (original petitioner) was not working as on date of advertisement, no age relaxation can be granted to him. This aspect of the matter has also not been properly appreciated by the learned Single Judge.

(vii) Moreover, it appears that the respondent was never appointed as a Daily-rated Worker even. He was not daily-rated worker as on the date of advertisement. The respondent was never appointed in pursuance of any public advertisement. The respondent was not appointed on any post of the State of Jharkhand which was to be filled up on regular basis. Thus, absolutely as Voluntary Health Worker he was on honorarium of Rs.50/- per month, that too he worked from 27th June, 1998 till 28th February, 2002. Such type of back-door entrant cannot be given any relief by the State of Jharkhand, otherwise, it will lead further chaos in the State of Jharkhand. Such type of back-door entrant must be forthwith removed from service, so that in a public employment, properly selected candidates can be appointed on merits. It has become fashion in “the State” within the meaning of Article 12 of the Constitution of India to appoint such type of back-door entrants. It is now high time for “the State” to initiate action against those persons who have given them appointment. In taking action against those administrative officers who are giving such type of illegal appointment, the State of Jharkhand has consistently failed. These aspects of the matter have not been properly appreciated by the learned Single Judge.

(viii) It has been held by Hon’ble Supreme Court in the case of