IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 861 of 2011
With
I.A. No. 1704 of 2011
Ritesh Ranjan & another …… Petitioners
Versus
The State of Jharkhand & ors. …… Respondents
CORAM: HON’BLE MR. JUSTICE D.N. PATEL For the Petitioners : Mr. Indrajit Sinha, Advocate
For the RespondentState
: J.C. to Sr. S.C.I
For Respondent Nos. 3, 4 & 5 : None
04/Dated: 1 st August, 2011
1. Learned counsel for the petitioners submitted that the petitioners are
working as Lecturers on contractual basis since December 2006. They are
working honestly, sincerely, diligently and to the satisfaction of the
respondents. Never any notice has been given to the petitioners for their
unsatisfactory work. Moreover, learned counsel for the petitioners has relied
upon the decision rendered by the Hon'ble Supreme Court in the case of State
of Haryana and others v. Piara Singh and others, reported in AIR 1992 SC
2130 and submitted that one adhoc employee cannot be replaced by another
adhoc employee. The petitioners are appointed on contractual basis and now
the respondents are terminating the services of the petitioners and the
petitioners are replacing by appointing other lot of similarly situated
contractual employee/Lecturer. Experienced hand teacher will go away and the
fresh lot of Lecturers will be appointed. This will also cause loss to the students
for whom the University has been established.
2. It is further submitted by learned counsel for the petitioners that out of the
total contractual basis Lecturers, the petitioners' services are going to be
terminated, whereas, 27 similarly situated contractual basis Lecturers are going
to be appointed by the respondents. This fact has been highlighted in
paragraph 20 of the memo of the petition. Thus, there is discrimination of the
petitioners from the similarly situated other candidates.
3. Learned counsel for the respondentState has nothing much to submit
because contesting respondents are respondent nos. 3, 4 and 5.
4. Learned counsel for respondent nos. 3, 4 and 5 is absent.
5. There is, prima facie, a case in favour of the present petitioners as they are
working on contractual basis as Lecturers since December 2006. Moreover,
2similarly situated other contractual basis Lecturers, who are 27 in number, are
going to be retained by the respondentUniversity. Moreover, looking to the
advertisement annexed at Annexure to the interlocutory application, it appears
that the respondentUniversity has given advertisement for appointment of 29
Lecturers on contractual basis for B. Ed. Course. Thus, it appears that the
petitioners are also Lecturers on contractual basis. They are going to be
replaced by other Lecturers on contractual basis. Thus, lot of experienced hand
Lecturers will have to go out and another fresh lot of Lecturers will be
appointed again on contractual basis. Thus, the students will be deprived of the
experienced hand Lecturer for whom the University has been constituted. Thus,
there is, prima facie, a case in favour of the present petitioners. Moreover,
balance of convenience is also in favour of the present petitioners and
irreparable loss will be caused to the petitioners if the stay, as prayed for in the
interlocutory application, is not granted. Moreover, paragraph 25 of the
decision rendered by the Hon'ble Supreme Court in the case of State of
Haryana and others v. Piara Singh and others, reported in AIR 1992 SC
2130, reads as under:
“25. ................. Secondly, an ad hoc or temporary employee should not be
replaced by another ad hoc or temporary employee; he must be replaced only
by a regularly selected employee. This is necessary to avoid arbitrary action on
the part of the appointing authority.
Thirdly, even where an ad hoc or temporary employment is necessitated on
account of the exigencies of administration, he should ordinarily be drawn
from the employment exchange unless it cannot brook delay in which case the
pressing cause must be stated on the file. If no candidate is available or is not
sponsored by the employment exchange, some appropriate method consistent
with the requirements of Article 16 should be followed. In other words there
must be a notice published in the appropriate manner calling for applications
and all those who apply in response thereto should be considered fairly.
An unqualified person ought to be appointed only when qualified persons are
not available through the above processes.
If for any reason, an ad hoc or temporary employee is continued for a fairly
long spell, the authorities must consider his case for regularisation provided he
is eligible and qualified according to rules and his service record is satisfactory
and his appointment does not run counter to the reservation policy of the State.
The proper course would be that each State prepares a scheme, if one is not
already in vogue, for regularisation of such employees consistent with its
reservation policy and if a scheme is already framed, the same may be made
consistent with our observations herein so as to reduce avoidable litigation in
this behalf. If and when such person is regularised he should be placed
immediately below the last regularly appointed employee in that category, class
or service, as the case may be.
So far as the workcharged employees and casual labour are concerned, the
effort must be to regularise them as far as possible and as early as possible
subject to their fulfilling the qualifications, if any, prescribed for the post and
subject also to availability of work. If a causal labourer is continued for a fairly
long spellsay two or three yearsa presumption may arise that there is regular
3need for his services. In such a situation, it becomes obligatory for the
concerned authority to examine the feasibility of his regularisation. While
doing so, the authorities ought to adopt a positive approach coupled with an
empathy for the person. As has been repeatedly stressed by this court, security
of tenure is necessary for an employee to give his best to the job. In this behalf,
we do commend the orders of the Government of Haryana (contained in its
letter dated 6490 referred to hereinbefore) both in relation to workcharged
employees as well as casual labour.
We must also say that the orders issued by the Governments of Punjab and
Haryana providing for regularisation of ad hoc/temporary employees who have
put in two years/one year of service are quite generous and leave no room for
any legitimate grievance by any one.
These are but a few observations which we thought it necessary to make,
impelled by the facts of this case, and the spate of litigation by such employees.
They are not exhaustive nor can they be understood as immutable. Each
Government or authority has to devise its own criteria or principles for
regularisation having regard to all the relevant circumstances, but while doing
so, it should bear in mind the observations made herein.”
In view of the aforesaid decision also, there is, prima facie, a case in favour
of the present petitioners.
6. In similarly situated another writ petition being W.P. (S) No. 695 of 2009
dated 29th April, 2009 (Annexure 5 to the memo of the petition), this Court
while admitting the writ petition passed the following order in paragraph 7:
“7. I hereby, direct the respondents and their officers to retain the services of
the present petitioners. If any new ground is emerging, like the misconduct etc.,
then, the respondents are permitted to hold an enquiry and take a legal action,
permissible under the law, but, the termination will be done by the permission
of this Court. If the respondents find any difficulty, they are at liberty to move
an Interlocutory Application in the pending writ petition.”
7. In view of the aforesaid facts and the decisions and also looking to the
contentious issues raised in this writ petition, Rule.
8. Rule is made returnable on 17th October, 2012.
9. Meanwhile, I hereby direct the respondents and their servants and officers
to retain the services of the present petitioners. If any new ground is found like
misconduct etc., the respondents are permitted to hold inquiry and take legal
action, but, the termination will be done with prior permission of this Court. If
the respondents find any difficulty, they are at liberty to move before this Court
by filing a fresh interlocutory application in this pending writ petition.
10. Registry is directed to enlist this matter under the heading “For Hearing”
on 17th October, 2012.
11. I.A. No. 1704 of 2011 is, accordingly, disposed of.
(D.N. Patel, J.)
Ajay
