Prolonged engagement of an employee establishes entitlement to regularization, and reliance on outsourcing to deny regularization is unconstitutional and arbitrary.

JUDGMENT :

DEEPAK ROSHAN, J.

1. Heard learned counsel for the parties.

2. The instant writ application has been preferred by the petitioner praying therein for quashing of the Letter No. 238 dated 30.01.2019, issued under the signature of the Joint Secretary, Transport Department, Government of Jharkhand (Annexure-4), whereby the respondents have rejected the petitioner's claim for regularization of service.

The petitioner has further prayed for a consequential direction upon the respondents to reconsider and decide her claim for regularization in a fair, lawful, and non- arbitrary manner, in accordance with constitutional principles and settled law.

3. The case of the petitioner is that she has been continuously working as a Computer Operator in the office of the respondent-Transport Department since 31.03.2004, initially on daily wage basis. Her engagement and continuance are duly evidenced by official communications including Letter No. 1802 dated 07.08.2007 (Annexure-1).

From the very inception of her engagement, the petitioner has discharged her duties continuously, efficiently, and without any interruption, as reflected from Letter dated 20.08.2004 (Annexure-2). There has never been any allegation regarding her conduct, competence, or performance.

Recognizing the petitioner's long and satisfactory service, the concerned District Transport Officers repeatedly recommended her case for regularization, vide Letter Nos. 1513 dated 15.05.2004, 1544 dated 19.05.2004, and 1285 dated 06.05.2005, which were later reiterated in Letter No. 1802 dated 07.08.2007. Despite such consistent recommendations, no decision was taken by the higher authorities.

4. The case of the respondents is that the petitioner was engaged through an outsourcing agency, and that the post of Computer Operator is allegedly not a sanctioned post.

It is contended that although the petitioner was engaged on the recommendation of the District Transport Officer with effect from 31.03.2004, no formal sanction was obtained from the competent authority, and therefore her engagement does not fall within the scope of regularization under the Jharkhand Service Regularization Rules, 2015.

It has been further argued that upon consideration by the departmental Committee, the petitioner's case was rejected on the ground that it does not fall within the definition of employee under Rule 2 of the said Rules, leading to issuance of the impugned letter.

5. Having heard Ld. Counsel for the parties and after going through the documents annexed with the respective affidavits it is evident that vide Letter No. 340 dated 15.03.2007, the Transport Department sanctioned 11 posts of Computer Operators on contractual basis for newly created districts. However, these sanctioned posts were never filled up, and the work continues to be performed through outsourced arrangements. In contrast, in older districts, the respondents continued to extract identical work from persons like the petitioner on daily wage/contractual arrangements for decades.

6. Aggrieved by the prolonged inaction, the petitioner had earlier approached this Court by filing W.P. (S) No. 5323 of 2018, which was disposed of by order dated 17.12.2018, directing the respondents to examine the petitioner's status and to pass a reasoned and speaking order within a stipulated period (Annexure-3).

In purported compliance of the said order, the respondents issued Lett