IMPORTANT POINT
Employment under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 is contractual in nature, and there is no entitlement to regularization unless a specific scheme is established by the government.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

Heard the learned counsels for the parties.

2. This writ petition has been filed for the following reliefs:

“(a) For issuance of the writ(s), order(s) or direction(s) particularly a writ of certiorari for quashing the memo no.13-108/MANo KSHEo STHAo/2020/GRAo VIo (N)996 (anu), Ranchi dated 20.07.2023 [Annexure-4], issued by the MGNREGA Commissioner Department of Rural Development, Government of Jharkhand (Respondent no. 3) wherein a direction for contractual appointment of MGNREAGA employees on vacant position has been made; AND

(b) For issuance of the writ(s), order(s) or direction(s) particularly a writ of certiorari for quashing the recruitment advertisement 01/2023, Dhanbad dated 27.09.2023 [Annexure-5], notified by the Deputy Commissioner, Dhanbad for contractual appointment;

(c) For issuance of the writ(s), order(s) or direction(s) particularly a writ of certiorari for setting aside any appointments made under the above advertisements.

(d) For issuance of any other appropriate writ(s) or direction(s) or order(s) as Your Lordships may deem fit and proper in view of the facts & circumstances of the case for doing conscionable justice to the Petitioners.”

Arguments of the petitioners.

3. The learned counsel submits that petitioner no.1 has been working as Gram Rojgar Sewak and petitioner no.2 has been working as an Account Assistant under Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (herein referred to as the Act of 2005) against sanctioned post. The appointment letter of petitioner no.1 is contained in Annexure – 1 dated 01.09.2007 issued by the Deputy Commissioner-cum-District Programme Officer, Dhanbad and so far as petitioner no.2 is concerned, his name is in Annexure – 2 dated 08.05.2008 issued by the office of Commissioner North Chottanagpur Division, Hazaribagh which contains a list of 26 persons.

4. The learned counsel has submitted that the petitioners have challenged the advertisement issued by the respondents for filling up the vacancies and has fairly submitted upon a query of this Court that no vacancy concerning Gram Rojgar Sewak has been advertised in the impugned advertisement but, interalia, 6 vacancies relating to Accounts Assistant have been advertised.

5. The learned counsel submits that by the impugned recruitment process parallel rights may be created in favour of the persons who would be recruited and such recruitment is not in accordance with law.

6. The learned counsel for the petitioners has heavily relied upon the judgment passed by the Hon’ble Supreme Court reported in (2018) 8 SCC 238 (Narendra Kumar Tiwari vs. State of Jharkhand) paragraph nos.5 and 7 to 12 to submit that the Hon’ble Supreme Court has deprecated the practice of making ad hoc appointments by the State and also the practice of irregular and illegal appointment of daily wagers and continuing them indefinitely.

7. Admittedly the petitioners have not sought any relief for regularization. However, the learned counsel has referred to paragraph 5 of the judgment passed by this Court in W.P.(S) No.1021 of 2020 and other analogous cases to submit that the matter regarding regularization has been considered in the said judgment as some of the petitioners of the said batch of cases were also working under MGNREGA Scheme, 2005. He has also referred to paragraphs nos.28, 31, 32, 34, 35, 37, 41, and 42 of the said judgment to submit that unless there is regularization of the petitioners the respondents should not go for fresh advertisement.

Arguments of the Respondents.

8. The learned counsel appearing on behalf of the respondents while opposing the prayer of the petitioners has referred to the judgment passed by this Court in W.P.(S). No.7401 of 2019 whereby in the absence of any scheme for regularization of MGNREGA employees, the relief seeking mandamus for regularization was denied and it was also obs