Bipin Prasad Singh and Others vs State of Jharkhand and Others

D.N. Patel, J.—The present petition has been preferred mainly for getting the services of the petitioners regularized.

It is submitted by the learned Counsel for the petitioners that the services of petitioner No. 3 have been regularized and, therefore, the present writ petition is confined to petitioner Nos. 1 and 3 only. It is vehemently submitted by the learned Counsel for the petitioners that petitioner Nos. 1 and 2 were serving with the respondents as Work Charge employees since 1965 and 1968 respectively and, therefore, their services ought to have been regularized by the concerned respondent authorities.

Learned Counsel for the petitioner has relied upon a Full Bench decision of this Court in the case of Ram Prasad Singh v. State of Jharkhand as reported in 2005 (3) J.L.J.R. 38 (FB), and submitted that the services of the petitioners ought to have been regularized by the concerned respondent authorities.

I have heard learned Counsel for the respondents, who has submitted that petitioner Nos. 1 and 2 were never appointed by the competent authority. Petitioner Nos. 1 and 2 were appointed by Sub Divisional Officers. In fact, these petitioners could not have been appointed by such a low ranking officers and the competent appointing authority is either Executive Engineer or the Chief Engineer of the Work Charge Establishment. It has also been submitted by the learned Counsel for the respondent-State that a conscious decision has been taken by the respondent-State, for such type of candidates, by appointing a separate committee of five members and a detailed speaking order has been passed by the said committee, which is at Annexure A to the counter affidavit, filed by the respondents.

It is submitted by the learned Counsel for the respondents that all these aspects have been considered, in detail, and as per paragraph No. 4 of the said speaking order, passed by the committee, the services of the petitioners have been found not to be regularized, because they were never appointed by the competent authorities. Learned Counsel for the respondents has also relied upon a decision, rendered by the Hon''ble Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, and submitted that for getting the services of these petitioners regularized under the Industrial Disputes Act, 1947, an industrial dispute ought to have been raised, so that proper evidences etc. can be taken and in a writ jurisdiction, regularization is not permissible, in the eyes of law. It is also submitted by the learned Counsel for the respondent that irregularity can be regularized, but, so far as illegality is concerned, it cannot be regularized. Once the appointment itself is an illegal and unauthorized, the same cannot be regularized by the State Government.

Having heard learned Counsel for both the sides and looking to the facts and circumstances of the case, I see no reason to entertain this writ petition, mainly for the following facts and reasons:

(i) It appears that petitioner Nos. 1 and 2 have preferred this writ petition under Article 226 of the Constitution of India for getting their services regularized by the State Government. Without evidence and without raising an industrial dispute, under the Industrial Disputes Act, 1947, directly a writ petition has been preferred before this Court.

(ii) It also appears from the facts of the present case that petitioner Nos. 1 and 2 were never appointed by either Chief Engineer or Executive Engineer of the Work Charge Establishment, who is the competent authority, rather they were appointed by Sub Divisional Officer, who is a low ranking officer, and the State Government has never given an authority to the Sub Divisional Officer to employ the persons on behalf of the State. On behalf of the State, such a low ranking officer cannot give appointment in a Work Charge Establishment to any person. The institutions of the State Government like Work Charge Establishment is not a proprietorship of the Sub Divisional officer that anybody can be appointed by him. Powers of giving employment is always vested in the high ranking officers.

(iii) It is submitted by the learned Counsel for the respondents that the Executive Engineer or the Chief Engineer has the power for giving appointment in a Work Charge Establishment and, therefore, the appointment of the present petitioners, made by the Sub Divisional Officer, from the very beginning was illegal. Nonetheless, the respondent-State was/is paying salary for the work done, but, so far as the question of regularization of the services of these petitioners is concerned, their services cannot be regularized, because from the very beginning, it was illegal and an illegality cannot be regularized subsequently.

(iv) Looking to the facts of the present case, it also appears that the State Government has constituted a committee of five members, consisting of high ranking officers, and a detailed speaking order has been passed on June 24, 2003, paragraph No. 4 thereof reflects that the services of the present petitioners could not be regularized, because they were never appointed by either the Chief Engineer or by the Executive Engineer of the Work Charge Establishment. The said decision is a general decision, taken for several employees and as per the said decision, which is at Annexure A to the counter affidavit, the services of petitioner No. 3 have been regularized. Thus, as per the policy decision, taken by the respondents, the services of petitioner No. 3 have been regularized, because he was appointed by the competent authority, whereas, petitioner Nos. 1 and 2 were never appointed by a competent officer. Thus, in pursuance of the policy decision, taken by the respondent-State for regularization of the services of its employees, the services of petitioner Nos. 1 and 2 cannot be regularized. Whenever there is a decision, taken by the State Government, based upon some policy, which is applicable in rem, this Court will not interfere with the same, in exercise of the powers under Article 226 of the Constitution of India, especially for regularization of services, when no industrial dispute has been raised by the petitioners under the Industrial Disputes Act, 1947.

Counsel for the petitioner pleaded ignorance whether petitioner Nos. 1 and 2 are working today or retired. Looking to the year of their appointments i.e. 1965 and 1968, even if it is presumed that they both were 18 years of age, when they joined their services, by now they must have reached the age of superannuation. Therefore also, I am not inclined to exercise extra-ordinary jurisdiction for regularisation of services of the petitioners.

In view of the aforesaid facts and reasons and the judicial pronouncements, I am not inclined to exercise the extra-ordinary jurisdiction, vested in this Court, under Article 226 of the Constitution of India, for regularization of the services of the present petitioners. There is no substance in this writ petition and, hence there is hereby dismissed.