Can't Perpetuate "Pernicious Practice" Of Indefinite Irregular Appointment: Jharkhand HC Orders Regularization Of Clerk After 10 Yrs

The Jharkhand High Court in a recent judgement, has directed the State to regularise the services of an appellant who had been engaged as a Computer Operator on a daily-wage basis since 2008 and later on a contractual basis.

A Division Bench comprising Chief Justice M.S. Ramachandra Rao and Justice Deepak Roshan observed, “We are of the opinion that utilizing the services of the appellant from 2008 (though under nomenclature of a 'daily wage' employee initially and later from 2013 as a 'contractual appointee,' which appointment was in fact done through a selection process adopted by the State with the Deputy Commissioner as the head of the Interview Committee), is practically indistinguishable from an appointment in a permanent post of clerk who is also engaged in doing typing on computer and data entry.”

Overturning the Single Judge's decision, the Court's division bench directed the State to regularise the appellant's service as a clerk on par with other employees whose services were regularized on July 22, 2022. The court observed that the appellant had completed ten years of continuous service as of June 20, 2019, and directed compliance within three months.

The Court stated, “The appeal is partly allowed; the judgment of the learned Single Judge is set aside; and the respondents are directed to regularize the services of the appellant as a Clerk at par with the persons regularized on 22.07.2022 ... within three months from the date of receipt of a copy of this order.”

The appellant was initially appointed as a Computer Operator on a daily-wage basis in the Social Security Cell, Giridih, for three months in 2008, with his service subsequently extended periodically.

In 2013, the State issued an advertisement to fill the post of Computer Operator-cum-Clerk on a contractual basis. Possessing the requisite qualifications, the appellant applied, was selected, and was appointed for one year, with provisions for renewal. Since then, the appellant has worked continuously.

The appellant argued that, pursuant to a notification dated June 20, 2019, and an amendment to the Jharkhand Sarkar Ke Adhinasth Aniyamit Rup Se Niyukt Ewam Karyarat Karmiyo Ki Sewa Niyamitikaran Niyamawali, 2015, employees with ten years of continuous service as of June 20, 2019, were eligible for regularisation. A recommendation for the appellant's regularisation was forwarded, but no decision was communicated to him.

Subsequent orders by the Deputy Commissioner extended the appellant's contractual service for successive years, with the latest extension covering the period from April 2022 to March 2023.

The appellant petitioned for regularisation on the grounds that he had worked continuously for more than ten years and sought absorption into the sanctioned post of Accounts Clerk.

The Single Judge denied the plea, reasoning that the regularisation scheme did not apply to contractual appointments, as they were not deemed irregular. The court also ruled that the appellant's daily-wage appointment ended upon his contractual employment.

Challenging this, the appellant filed the present appeal, resulting in the Division Bench's favourable order recognizing his continuous service and directing his regularisation.

The Court relied on the Apex Court's judgement in Secretary, State of Karnataka v. Uma Devi, where a Constitution Bench emphasised that regular appointments to fill vacancies must follow established procedures and cannot be based on patronage or irregular practices. The Supreme Court in its judgement had criticised the Union Government, the State Governments, their departments and instrumentalities for resorting to irregular appointments in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commissions or otherwise as per the rules adopted and to permit such irregular appointees or those appointed on contract or on daily wages, to continue year after year.

The Court noted with disapproval that, despite the principles laid down in Uma Devi, the appellant was appointed on a daily wage basis in January 2008 and later on a contractual basis, without adherence to proper recruitment procedures. The appointment violated the constitutional requirement for regular appointments.

The Court observed that among nine individuals whose services had been regularised, one was formally designated as a Computer Operator cum Data Entry Operator, while the others were performing similar computer-related duties without a formal designation due to the absence of specific posts at the time.

“Inspite of the same, the services of the said persons were regularised by the State on the post of Clerk, which was a sanctioned post. There is no explanation for this action by the respondents. The appellant cannot be discriminated against in this manner by them,” the Court said.

“The learned Single Judge, in our opinion, erred in holding that the scheme of regularisation framed by the State in 2015 through a Circular dated 13.02.2015 as modified on 20.06.2019 would not apply in the case of persons like the appellant because they have been appointed on contractual basis, which are not irregular appointments. This is because even the contractual appointment had not been contemplated in the Service Rules and only regular appointment ought to have been made as was held in the case of Uma Devi (3) (2 supra),” the Court added.

The Court also rejected the respondents' claim that the appellant had not worked continuously since 2008. It held that his services had been utilised uninterruptedly under varying descriptions—first as a daily wage worker and later as a contractual employee.

Accordingly, the appeal was allowed.

Case Title: Rajesh Kumar Verma v. State of Jharkhand

LL Citation: 2024 LiveLaw (Jha) 179

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