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2018 Supreme(Jhk) 1371
IN THE HIGH COURT OF JHARKHAND AT RANCHI
D.N. PATEL, ANUBHA RAWAT CHOUDHARY, JJ.
Shobha Rani & Ors. - Appellants
Versus
The State of Jharkhand & Ors. - Respondents
L.P.A. No. 581 of 2016
Decided On : 11-01-2018
Subject
Employment Law - Regularization of Contractual Employees
Act Referred
CONSTITUTION OF INDIA : Art.12, Art.14, Art.16, Art.309, Art.311, Art.320(1), Art.320(3), Art.315, Art.162
Headnote
Constitution of India, 1950 – Articles 12, 315, 320, 14, 16 – Regularisation of Services – Letters Patent Appeal has, been preferred by the original petitioners in W.P. which was dismissed by the learned Single Judge vide judgment and order – Hence, the original petitioners have preferred the present Letters Patent Appeal seeking regularisation against the post of Auxiliary Nurse Midwifery – Held, It has become fashion now a days that those who are adorning the high ranking administrative posts in the institutions which are the State within the meaning of Article 12 of the Constitution of India, they are initially engaging the persons on a contractual basis or on a temporary basis or as a daily wager and thereafter the claims are being made for their regularization after few years of services rendered by them. – A thing which cannot be done directly, can never be done, indirectly. – Hence, even if such types of contractual employees, temporary employees, daily wagers, who have been engaged as class IV employees without any public advertisement, without any interview, without any test and without their being an opportunity given to the public at large and even if they have worked for 5 years or 10 years or 15 years or more, their services cannot be regularized. – Illegality continues and hence, no premium Cell be given to such illegality – No time can save these types of illegal appointments. – As a cumulative effect of aforesaid facts reasons and judicial pronouncement, no error has been committed by the learned Single Judge while deciding the W.P. (S) – Court also see no reason to take any other view than what is taken by the learned Single Judge. – There is no substance in this Letters Patent Appeal and the same is, therefore, dismissed. – LPA Dismissed
For the Appellant : Pradeep Kumar Verma
For the Respondent: Jai Prakash, A.A.G and Rishi Pallava. J.C. to A.A.G
D.N. Patel, J.
This Letters Patent Appeal has, been preferred by the original petitioners in W.P. (S) No. 3656 of 2015. which was dismissed by the learned Single Judge vide judgment and order dated 28.11.2016. Hence, the original petitioners have preferred the present Letters Patent Appeal seeking regularisation against the post of Auxiliary Nurse Midwifery (hereinafter referred to as "the ANM" for the sake of brevity).
2. Having heard the learned counsels for both the sides and looking to the facts and circumstances of this case. it appears that these appellants are the original petitioners. who were employed on contract basis for a period running from 15.11.2003 to 15.11.2005, i.e.. for two years as ANMs under the scheme. floated by the Central Government viz. "Reproductive Child Health Scheme".
3. It further appears from the facts of the case that after 2005, the services of these appellants were never invited by the State of Jharkhand for several months.
4. Thereafter. in the year 2008. another scheme was floated by the Central Government viz. "National Rural Health Mission".
5. Under this new scheme. again these appellants (original petitioners) were given contractual appointments. Different petitioners were given appointment letters for different dates. which are at Annexure-3 series to the memo of the Letters Patent Appeal.
6. Much has been argued by the learned counsel for the appellants as the appellants were working since 2008 and their services ought to have been regularized by the Government of Jharkhand as ANM and. therefore the writ petition was preferred being W.P. (S) No. 3656 of 2015 by these appellants.
7. It appears that as per the Rules enacted by the State of Jharkhand, which are at Annexure-5. in the year 2014 only those ANMs, who were appointed by the State of Jharkhand to work in any of the Departments of the Government of Jharkhand with certain conditions mentioned therein, are to be regularized. Much has been argued by the learned counsel for the appellants that under these Rules, which are of the year 2014 (Annexure-5), these appellants ought to have been regularized as ANMs.
8. We are not in agreement with the contentions, raised by learned counsel for the appellants, mainly for the reasons that :-
(a) Looking to the regulations of 2014 for regularization (Annexure-5), it appears that as per Clause 2 (kh) to be read with other sub-clause of Clause-2 to be read with Clause 4(kh), only those ANMs, who were appointed by the Government of Jharkhand for working in the departments of the Government of Jharkhand and if they have completed five years services and if they are otherwise qualified to be appointed as ANMs and if they have not completed the age of 60 years, their services can be regularized.
(b) Looking to the contractual employment given to these appellants, it appears that they were appointed under the Scheme floated by the Central Government namely National Rural Health Mission.
(c) It further appears that the State of Jharkhand has never engaged these appellants as ANMs within the Department of State of Jharkhand for the work to be done for the State of Jharkhand.
(d) These appellants were appointed only under National Rural Health Mission. Had there been no such type of Central Government Scheme. perhaps they would not have been engaged on contractual basis.
9. Thus there is a difference in the engagement of these appellants under the Central Government Scheme and the engagement of other ANMs• by the Government of Jharkhand itself for the work to be done within the departments of the State of Jharkhand. Thus. services of only those ANMs. who were appointed by the State of Jharkhand for the State of Jharkhand and who are working within the departments of the State of Jharkhand. can be regularized under "Rille 2014" (Annexure-5 to the memo of the Letters Patent Appeal).
10. As per Rille. 2014. services of those ANMs. who were appointed under the scheme floated by the Central Government. could not h
