IN THE HIGH COURT OF JHARKHAND AT RANCHI

L.P.A No. 390 of 2024

Bhola Nath, aged about 43 years, son of late Nageshwar Thakur, r/o village-

Murim Kala, PO-Gosa, PS & District-Ramgarh .......… Appellant

Versus

1. The State of Jharkhand

2. The Chief Secretary, Government of Jharkhand, Project Bhawan, PO &

PS-Dhurwa, District-Ranchi

3. The Principal Secretary, Agriculture and Sugarcane Development

Department (now called as Agriculture, Animal Husbandry and Cooperative

Department), Government of Jharkhand, Nepal House, PO & PS-Doranda,

District-Ranchi

4. The Deputy Secretary, Agriculture and Sugarcane Development

Department (now called as Agriculture, Animal Husbandry and Cooperative

Department), Government of Jharkhand, Nepal House, PO & PS-Doranda,

District-Ranchi

5. The Director, Soil Conservation Department, Government of Jharkhand

having office at Krishi Bhawan Compound, Kanke Road, PO & PS-Kanke,

District-Ranchi

6. The Principal Secretary, Personnel, Administrative Reforms and

Rajbhasha Department, Government of Jharkhand, Project Bhawan, PO &

PS-Dhurwa, District-Ranchi

7. The Secretary, Finance, Government of Jharkhand, Project Bhawan, PO

& PS-Dhurwa, District-Ranchi …. ... Respondents

CORAM: HON'BLE THE ACTING CHIEF JUSTICE

HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

For the Appellant : Mr. A.K. Sahani, Advocate

For the Respondent-State : Mr. Ashok Kumar Yadav, Sr.SC-I

Mr. Aditya Kumar, AC to Sr. SC-I

---------

Order No.4/Dated:17

th

September 2024

Per Sujit Narayan Prasad, A.C.J.

Prayer

The present appeal under clause 10 of the Letters Patent is directed

against the judgment dated 14

th

May 2024 passed in W.P(S) No.2597 of

2023 whereby and whereunder the learned Single Judge has refused to

interfere with the prayer sought for on behalf of the petitioner for getting the

contractual period extended by dismissing the writ petition.

Factual Matrix

2. The brief facts of the case as per the pleadings made in the writ

petition reads as under:

2

Initially the appellant-writ petitioner was working on the post of

Junior Site Engineer at Jodhpur in Rail Vikash Nigam Ltd. for the period

from 28.12.2006 to 16.01.2013.

By Office-order no: 1395 dated 06.09.2012, the Director, Soil

Conservation, Government of Jharkhand issued a list of all permanent

sanctioned posts of Junior Engineer of the Agriculture, Animal Husbandry

and Cooperative Department, Government of Jharkhand and the same was

determined in all the 22 districts of the State of Jharkhand.

In September, 2012, an advertisement was floated by the respondent

no.5, i.e., Director, Soil Conservation Department, inviting applications for

contractual appointment against aforesaid 22 sanctioned posts of Junior

Engineers (Agriculture) from eligible candidates which are permanent in

nature.

It is pleaded that all the posts, against which applications were invited,

were found to be admissible at the pay scale of Rs.9300- Rs.34,800/- with

grade pay of Rs.4200/- but with the aid of same nomenclature of

contract/Adhoc appointment, a consolidated salary was mentioned as Rs.

17,750/-.

The appellant, being qualified, applied for the said post and after

scrutiny, the respondents issued respective Admit Card calling the appellant

to appear in the selection process by way of interview on 29.10.2012 by a

duly constituted Selection Committee comprised of high-ranking officials.

Accordingly, the appellant-writ petitioner participated in the selection

process and after due procedure, he was declared successful to be appointed

on the post of Junior Engineer (Agriculture Engineering) vide office order

no:1893 dated 27.12.2012.

Pursuant to that appointment, the appellant reported his joining before

the respondent no.5. Vide office order issued under Memo No. 1913 dated

29.12.2013, and accordingly, the respondent no.5 posted the appellant in

Chatra district with a direction to report his joining.

Accordingly, the appellant joined before the respondent no.5, who,

after due formalities, relieved the appellant to join before concerned Soil

Conservation Office. Accordingly, the appellant-writ petitioner joined

3

before the Controlling Authority in Chatra district and started his duties to

the satisfaction of all concerned.

After looking to his performance and continuous contribution in

implementation of one or other Government scheme, the ages of the

appellant-writ petitioner and other similarly situated persons were

transposed in the admissible scale relating to Junior Engineers vide letter

No: 596 dated 09.05.2013. On satisfactory performance, the Controlling

Authority always recommended for extension/ continuance of the service of

the appellant.

It is further pleaded that the salary of the appellant and other similarly

candidates were enhanced time to time and their services were subjected to

transfer and posting like permanent employees through Establishment

Committee. The service of the appellant and others were treated as regular

and indispensable even after expiry of the contract period.

It is further pleaded that vide office order dated 13.12.2022 it was

contemplated that no further extension would be granted to the persons

concerned who are working on the said post and vide office order dated

28.02.2023 it was made clear to the appellant that no extension would be

granted to him in future even after his satisfactory service of 10 years.

Being aggrieved, the petitioner approached this Court by filing

W.P(S) No.2597 of 2023 which was dismissed by the learned Single Judge

which is the subject matter in the present Letters Patent Appeal.

3. it is evident from factual aspects that admittedly the writ petitioner-

appellant was appointed on the post of Junior Engineer (Agriculture

Engineering) by virtue of the advertisement issued for fulfilling the

appointment on contractual basis.

4. The appellant along with the others have participated in the selection

process and he has been appointed vide office order no.1359 dated 6

th

September 2012 initially for one year and thereby the contract was extended

time to time and the appellant was allowed to continue in service for about

12 years.

5. The period of contract since has not been extended and as such the

petitioner has approached this Court by filing W.P(S) No.2597 of 2023. The

learned Single Judge has declined to pass any positive direction in favour of

4

the petitioner-appellant considering the nature of engagement which was on

contractual basis depending upon the terms and conditions of appointment

which is the subject matter of present Letters Patent Appeal.

Argument by the learned counsel for the appellant:

6. Mr. A.K. Sahani, the learned counsel appearing for the appellant has

raised the following grounds in assailing the impugned judgment:

I. It has been submitted that the writ petitioner has although has

been appointed on contractual basis after following the all procedure

as laid down under Articles 14 and 16 of the Constitution of India,

since, one advertisement was issued and the appellant-writ petitioner

has been subjected to the recruitment process based upon that and

depending upon the performance of other candidates the appellant-

writ petitioner has been appointed.

II. It has been contended that it is not that the appellant-petitioner

has only been continuing in service for one year rather considering the

satisfactory nature of service he has been allowed to continue for a

period of 12 years, but subsequent thereto, the extension has not been

granted without any rhyme and reason.

III. The post on which the petitioner was allowed to continue in

service has already been sanctioned as would appear from the

documents and more particularly the offer of appointment wherein it

has been stipulated that the recruitment processes is to be initiated

against 22 permanent posts meaning thereby the advertisement which

has been issued for 22 posts have been sanctioned and against that the

appellant has been appointed but it cannot be said that the post on

which the appellant was appointed has not been sanctioned. The

petitioner has been allowed to continue in service for 12 years and as

such instead of regularizing the service, the extension of the contract

has not been granted and, therefore, the respondents have committed

gross illegality.

IV. The learned counsel appearing for the appellant based upon

the aforesaid grounds has submitted that the impugned order therefore

suffers from illegality and it is not sustainable in the eyes of law.

5

Argument of Learned counsel for the respondents:

7. Per contra, Mr. Ashok Kumar Yadav, the learned counsel appearing

for the respondent-State while defending the impugned order has taken the

following grounds:

I. The ground which has been taken that the post has been

sanctioned as has been referred in the advertisement which has got no

bearings of the issue of extension of his service is concerned reason being

that the appellant has been appointed purely on contractual basis which is

known to the appellant.

II. It has further been contended that when the appellant has

accepted the terms and conditions of the offer of appointment and, as such,

it is not available for him to assail the said terms and conditions by taking

the ground for extending the contract. The ground has also been taken that

once the terms and conditions of the contract has been accepted it is even

not available for the Court of Law to change or rewrite the terms and

conditions of the contract.

8. The learned State counsel states that since on the basis of the aforesaid

premise the learned single judge has passed the order, therefore, the same

cannot be said to suffer from any illegality.

Analysis

9. We have heard the learned counsels appearing for the parties, gone

through the pleadings made in the writ petition as also the findings recorded

by the learned Single Judge in the impugned order.

10. The foremost ground has been taken on behalf of the learned counsel

appearing for the appellant that the appellant-writ petitioner was appointed

on the contract basis but such appointment was based upon the post having

been sanctioned as per the terms and conditions of the advertisement.

11. This Court, therefore is to consider as to whether the candidate if

appointed on the contract basis even though on the sanctioned post based

upon the terms and conditions of their regular performance is available for

the such candidate to come before the Court to rewriting the terms and

conditions of the contract which has been accepted by the said candidate.

12. The second question which is required consideration is that when such

candidate is knowing about the fate of such contractual engagement is it

6

available for such candidate to get it continued for eternity, that too,

contrary to the terms and conditions of that contract.

13. Since, both the issues are interlinked and as such the same are being

taken together for analyzing the same.

14. But before analyzing the aforesaid issues, the underlying proposition

of law in the case of regularization as has been laid down by the Hon’ble

Apex Court needs to be refer herein.

15. The issue of regularization fell for consideration before Hon'ble Apex

Court in the judgment rendered in State of Karnataka v. Uma Devi

(3) [(2006) 4 SCC 1] and subsequent thereto in the State of

Karnataka v. M.L. Kesari [(2010) 9 SCC 247].

16. The Constitution Bench of the Hon’ble Apex Court in the case of

State of Karnataka v. Uma Devi (3) wherein the proposition has been laid

down as would appear from paragraph no.53 that the issue of regularization

is to be taken into consideration by the State by one time exercise if the

candidate has been allowed to remain in service continuously for 10 years

without any aid of ad-interim order passed by the Court and if the

appointment has been made against the sanctioned post.

17. For ready reference the relevant paragraph no. 53 of the aforesaid

judgment is being quoted as under:

“53. One aspect needs to be clarified. There may be cases

where irregular appointments (not illegal appointments) as

explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR

1967 SC 1071], R.N. Nanjundappa [(1972) 1 SCC 409 :

(1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC

507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred

to in para 15 above, of duly qualified persons in duly

sanctioned vacant posts might have been made and the

employees have continued to work for ten years or more but

without the intervention of orders of the courts or of

tribunals. The question of regularisation of the services of

such employees may have to be considered on merits in the

light of the principles settled by this Court in the cases

abovereferred to and in the light of this judgment. In that

7

context, the Union of India, the State Governments and their

instrumentalities should take steps to regularise as a one-

time measure, the services of such irregularly appointed,

who have worked for ten years or more in duly sanctioned

posts but not under cover of orders of the courts or of

tribunals and should further ensure that regular

recruitments are undertaken to fill those vacant sanctioned

posts that require to be filled up, in cases where temporary

employees or daily wagers are being now employed. The

process must be set in motion within six months from this

date. We also clarify that regularisation, if any already

made, but not sub judice, need not be reopened based on

this judgment, but there should be no further bypassing of

the Constitutional requirement and regularising or making

permanent, those not duly appointed as per the

constitutional scheme.”

18. Subsequently, the Hon'ble Apex Court has delved upon the issue

in State of Karnataka v. M.L. Kesari (supra) by dealing with the difference

in between the regular employment and illegal employment. For ready

reference the relevant paragraph of the judgment is quoted as under:

7. It is evident from the above that there is an exception to

the general principles against “regularisation” enunciated

in Umadevi (3) [(2006) 4 SCC 1], if the following

conditions are fulfilled:

(i) The employee concerned should have worked for 10

years or more in duly sanctioned post without the benefit or

protection of the interim order of any court or tribunal. In

other words, the State Government or its instrumentality

should have employed the employee and continued him in

service voluntarily and continuously for more than ten

years.

(ii) The appointment of such employee should not be illegal,

even if irregular. Where the appointments are not made or

8

continued against sanctioned posts or where the persons

appointed do not possess the prescribed minimum

qualifications, the appointments will be considered to be

illegal. But where the person employed possessed the

prescribed qualifications and was working against

sanctioned posts, but had been selected without undergoing

the process of open competitive selection, such

appointments are considered to be irregular.

19. Applying the ratio of Umadevi (3) case (supra), the Hon’ble Apex

Court in Nihal Singh v. State of Punjab (2013) 14 SCC 65 directed the

absorption of the Special Police Officers in the services of the State of

Punjab. As per the factual aspect of the said case the petitioner was allowed

to continue in service based upon the recommendation of creation of the

post and he has been allowed to continue in service for a period of 10 years

but which the post has not been sanctioned rather his service was

terminated, then he has approached to the Court of Law and in that

circumstances, the Hon’ble Apex Court has been pleased to pass an order

that when there was recommendation of creation of post then there is no

question to dispense with the service of Nihal Singh. For ready reference

the relevant paragraph if the aforesaid judgment is being quoted as under:

“35. Therefore, it is clear that the existence of the need for

creation of the posts is a relevant factor with reference to

which the executive government is required to take rational

decision based on relevant consideration. In our opinion,

when the facts such as the ones obtaining in the instant case

demonstrate that there is need for the creation of posts, the

failure of the executive government to apply its mind and

take a decision to create posts or stop extracting work from

persons such as the appellants herein for decades together

itself would be arbitrary action (inaction) on the part of the

State.

36. The other factor which the State is required to keep in

mind while creating or abolishing posts is the financial

implications involved in such a decision. The creation of

9

posts necessarily means additional financial burden on the

exchequer of the State. Depending upon the priorities of the

State, the allocation of the finances is no doubt exclusively

within the domain of the legislature. However in the instant

case creation of new posts would not create any additional

financial burden to the State as the various banks at whose

disposal the services of each of the appellants is made

available have agreed to bear the burden. If absorbing the

appellants into the services of the State and providing

benefits on a par with the police officers of similar rank

employed by the State results in further financial

commitment it is always open for the State to demand the

banks to meet such additional burden. Apparently, no such

demand has ever been made by the State. The result is—the

various banks which avail the services of these appellants

enjoy the supply of cheap labour over a period of decades.

It is also pertinent to notice that these banks are public

sector banks.”

20. The judgment rendered by the Hon’ble Apex Court in the case of

Amarkant Rai v. State of Bihar, (2015) 8 SCC 265, it would be evident

from the factual aspect that the person concerned, i.e., Amarkant Rai was

appointed in the year 1983 in Class IV post of night guard. The University

vide letter dated 4-7-1985 took a decision to regularise the persons who

worked for more than 240 days, and thereafter, the Additional

Commissioner-cum-Secretary, Bihar passed a settlement and forwarded a

copy of the same to the Vice-Chancellors of the universities, wherein it was

stated that the services of employees working in educational institutions as

per the staff pattern, can be regularised. The Principal, Ramashray

Baleshwar College requested the Registrar of the University to regularise

the services of the appellant vide letter dated 7-10-1993; but the Registrar

passed an order of termination dated 1-3-2001. Writ Petition No. 9809 of

1998 was preferred by few similarly placed daily-wagers in the High Court.

As per the directions issued by the High Court, the Registrar of the

University vide letter dated 22-12-2001 allowed all the daily-wagers to

10

resume their jobs from 3-1-2002 and the appellant also joined his duties but

the day when he was appointed, there was no sanctioned post.

21. The Hon’ble Apex Court has taken into consideration that the appellant

has served the University for more than 29 years on the post of night guard

and that he has served the College on daily wages, in the interest of justice,

the authorities were directed to regularise the services of the appellant

retrospectively w.e.f. 3-1-2002 (the date on which he rejoined the post as per

the direction of the Registrar) the relevant factual aspect along with the

consideration made by the Hon’ble Apex Court in the said case is being

referred hereinbelow:

8. Insofar as contention of the respondent that the

appointment of the appellant was made by the Principal

who is not a competent authority to make such appointment

and is in violation of the Bihar State Universities Act and

hence the appointment is illegal appointment, it is pertinent

to note that the appointment of the appellant as night guard

was done out of necessity and concern for the College. As

noticed earlier, the Principal of the College vide letters

dated 11-3-1988, 7-10-1993, 8-1-2002 and 12-7-2004

recommended the case of the appellant for regularisation on

the post of night guard and the University was thus well

acquainted with the appointment of the appellant by the

then Principal even though the Principal was not a

competent authority to make such appointments and thus the

appointment of the appellant and other employees was

brought to the notice of the University in 1988. In spite of

that, the process for termination was initiated only in the

year 2001 and the appellant was reinstated w.e.f. 3-1-2002

and was removed from services finally in the year 2007. As

rightly contended by the learned counsel for the appellant,

for a considerable time, the University never raised the

issue that the appointment of the appellant by the Principal

is ultra vires the rules of the BSU Act. Having regard to the

various communications between the Principal and the

11

University and also the educational authorities and the facts

of the case, in our view, the appointment of the appellant

cannot be termed to be illegal, but it can only be termed as

irregular.

13. In our view, the exception carved out in para 53

of Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] is

applicable to the facts of the present case. There is no

material placed on record by the respondents that the

appellant has been lacking any qualification or bore any

blemish record during his employment for over two

decades. It is pertinent to note that services of similarly

situated persons on daily wages for regularisation viz. one

Yatindra Kumar Mishra who was appointed on daily wages

on the post of clerk was regularised w.e.f. 1987. The

appellant although initially working against unsanctioned

post, the appellant was working continuously since 3-1-

2002 against sanctioned post. Since there is no material

placed on record regarding the details whether any other

night guard was appointed against the sanctioned post, in

the facts and circumstances of the case, we are inclined to

award monetary benefits to be paid from 1-1-2010.

22. It is further required to refer herein that since the State of Jharkhand

has been made on 15.11.2000, therefore, the ratio which has been laid down

by the Hon'ble Apex Court in Secretary, State of Karnataka v. Uma

Devi (supra) will count the period of ten years which was up to the date of

pronouncement of the judgment, i.e., 10.04.2006 which subsequently has

been been clarified by the Hon'ble Apex Court in Narendra Kumar

Tiwari v. State of Jharkhand, (2018) 8 SCC 238 wherein it has been laid

down that the period of ten years so far as the State of Jharkhand is

concerned, would be counted from 15.11.2000.

23. It is, thus, evident that in the case of Narendra Kumar Tiwari v. State

of Jharkhand (Supra), there is no new proposition, rather, only partial

modification has been made so far as the period of 10 years which is to be

counted from which date in view of the fact that the State of Jharkhand since

12

has been created on 15.11.2000. The relevant paragraphs of the aforesaid

judgment are being referred hereunder as:—

“5. The decision in Umadevi (3) [State of

Karnataka v. Umadevi (3), (2006) 4 SCC 1] was intended to

put a full stop to the somewhat pernicious practice of

irregularly or illegally appointing daily-wage workers and

continuing with them indefinitely. In fact, in para 49 of the

Report, it was pointed out that the rule of law requires

appointments to be made in a constitutional manner and the

State cannot be permitted to perpetuate an irregularity in

the matter of public employment which would adversely

affect those who could be employed in terms of the

constitutional scheme. It is for this reason that the concept

of a one-time measure and a cut-off date was introduced in

the hope and expectation that the State would cease and

desist from making irregular or illegal appointments and

instead make appointments on a regular basis.

7. The purpose and intent of the decision in Umadevi

(3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1]

was therefore twofold, namely, to prevent irregular or illegal

appointments in the future and secondly, to confer a benefit

on those who had been irregularly appointed in the past.

The fact that the State of Jharkhand continued with the

irregular appointments for almost a decade after the

decision in Umadevi (3) [State of Karnataka v. Umadevi

(3), (2006) 4 SCC 1] is a clear indication that it believes

that it was all right to continue with irregular appointments,

and whenever required, terminate the services of the

irregularly appointed employees on the ground that they

were irregularly appointed. This is nothing but a form of

exploitation of the employees by not giving them the benefits

of regularisation and by placing the sword of Damocles

over their head. This is precisely what Umadevi (3) [State of

13

Karnataka v. Umadevi (3), (2006) 4 SCC 1]

and Kesari [State of Karnataka v. M.L. Kesari, (2010) 9

SCC 247] sought to avoid.

8. If a strict and literal interpretation, forgetting the spirit of

the decision of the Constitution Bench in Umadevi (3) [State

of Karnataka v. Umadevi (3), (2006) 4 SCC 1], is to be

taken into consideration then no irregularly appointed

employee of the State of Jharkhand could ever be

regularised since that State came into existence only on 15-

11-2000 and the cut-off date was fixed as 10-4-2006. In

other words, in this manner the pernicious practice of

indefinitely continuing irregularly appointed employees

would be perpetuated contrary to the intent of the

Constitution Bench.

9. The High Court as well as the State of Jharkhand ought

to have considered the entire issue in a contextual

perspective and not only from the point of view of the

interest of the State, financial or otherwise — the interest of

the employees is also required to be kept in mind. What has

eventually been achieved by the State of Jharkhand is to

short circuit the process of regular appointments and

instead make appointments on an irregular basis. This is

hardly good governance.

10. Under the circumstances, we are of the view that the

Regularisation Rules must be given a pragmatic

interpretation and the appellants, if they have completed 10

years of service on the date of promulgation of the

Regularisation Rules, ought to be given the benefit of the

service rendered by them. If they have completed 10 years of

service they should be regularised unless there is some valid

objection to their regularisation like misconduct, etc.”

24. The fact of Narendra Kumar Tiwari v. State of Jharkhand (Supra) is

also of the daily rated employees and not the contractual engagee, therefore,

14

the State of Jharkhand has formulated a Rule in the year 2015 in terms of the

direction passed by the Hon'ble Apex Court in the case of Narendra Kumar

Tiwari v. State of Jharkhand (Supra).

25. So far as the regularization or absorption of the contractual employees

is concerned, the law is well settled that the employees appointed on

contractual basis are to be governed through the terms and conditions of the

contract by virtue of the fact that it is a bilateral contract in between the

employees and the concerned employer.

26. The law is also settled that the engagee on contractual basis is

exclusively to be governed with the terms and conditions of the contract and

in that view of the matter, the condition as stipulated in the service code is

not applicable, meaning thereby, the service of the appointees appointed on

contractual ground, is to continue in service depending upon the terms and

conditions of the contract which cannot be altered or any condition be added

by virtue of issuance of direction by the court on the settled position of law

that the terms of contract cannot be re-written, reference in this regard be

made to the judgment rendered by Hon'ble Apex Court in the case of Union

Territory of Pondicherry v. P.V. Suresh, (1994) 2 SCC 70. At paragraph

11 of the aforesaid decision, it has been held that the Court has no

jurisdiction to alter the terms or rewrite the contract between the parties, for

ready reference paragraph 11 is being referred as under:—

“11. In the circumstances of this case, ……………………..

Otherwise, the Court has no jurisdiction to alter the terms

or rewrite the contract between the parties.”

27. Here, the factual aspect of the present case as has been admitted by

virtue of page-31, i.e., office order dated 6.9.2012 whereby and whereunder

the post has been shown to be sanctioned so far as the nature of the post of

appellant is concerned. The advertisement has been appended as Annexure-

2 wherein also the post has been shown to be sanctioned.

28. The process of selection has been followed by making application from

one or the other eligible candidates. The petitioner has been found to be one

of the successful candidates and he has been appointed by virtue of the offer

of appointment vide Annexure-3 dated 27.12.2012. It would be evident from

15

the offer of appointment where also the reference of post has been

sanctioned, 22 in numbers, found mentioned. But the writ petitioner along

with the others has been appointed on contract basis depending upon the

certain terms and conditions as has been referred in paragraph no.3, for

ready reference the said terms and conditions are extracted below:

विज्ञापन में प्रकाशित ितों, चयन सशमतत की अनुिंसा एिं विभागीय अनुमोदन के

आलोक में तनयोजन की ितत तनम्न प्रकार से होगी।

i) चयतनत अभ्यर्थी तनगतत आदेि की ततथर्थ के 15 ददनों के अन्दर तनदेिक, भूशम

संरक्षण, झारखण्ड, रााँची को अपना योगदान देंगे, 15 ददनों के अंदर योगदान नह ं

करने पर उनके स्र्थान पर प्रतीक्षा सूथच से तनयोजन कर शलया जायेगा।

ii) तनदेिक, भूशम संरक्षण, झारखण्ड, रााँची को सभी िैक्षणणक योग्यता, अनुभय प्रमाण

पत्र की मूल प्रतत के सार्थ उसकी एक छाया प्रतत (स्ियं अशभप्रमाणणत) एिं

असैतनक िल्य थचककत्सक के स्तर से तनगतत थचककत्सा प्रमाण पत्र (मूल �प में) के

सार्थ समवपतत कर योगदान करेंगे।

iii) अनुिंशसत कमी को 50.00 �० (पचास �०) के Non Judicial Stamp paper पर

तनदेिक भूशम संरक्षण, झारखण्ड, रााँची के सार्थ एक एकरारनामा (प्रा�प संलग्न)

हस्ताक्षररत करना होगा जजसने ककसी भी प्रकार की संविदा विस्तार / स्र्थायी

तनयशमत तनयोजन का दािा नह ं करने सदहत सभी बिन्दुओं का उल्लेख ककया

जाएगा तर्था एकरारनामा के हस्ताक्षरोपरान्त तनदेिालय के योगदान की ततथर्थ से

संविदा आधाररत अिथध आरभ मानी जाएगी एिं तत्पश्चात संिंथधत कायातलय में

योगदान करने हेतू विरशमत ककया जायेगा।

iv) प्रसंगाधीन सेिाएाँ संविदा आधाररत होगी तर्था प्रार्थशमक तौर पर एक िर्त या

एकरारनामा एिं विज्ञान की ितों के अनु�प होगी।

v) ककसी भी अभ्यर्थी की संविदा आधाररत सेिा संतोर्जनक नह ं होने पर या

तनयशमत तनयुजतत होने की जस्र्थतत में एक माह की सूचना / मानदेय देकर कभी भी

सेिा समाप्त की जा सकती है एिं उनके द्िारा ककसी भी प्रकार की संविदा विस्तार

/ स्र्थायी / तनयशमत तनयुजतत का दािा अनुमान्य नह ं होगा। इसके विपर त कोई

कमी तनयोजन के स्ितः मुतत होना चाहेंगे तो तनयंत्री पदाथधकार के माध्यम से

तनदेिक, भूशम संरक्षण, झारखण्ड, रॉची से अनुमोदन प्राप्त करना होगा।

vi) सेिा संतोर्जनक होने पर एकरारनामा की अिथध अगले आदेि के द्िारा

विस्ताररत की जा सकती है जजसमें तनयमानुसार मानदेय में िृद्थध अनुमान्य होगी।

vii) योगदान करने हेतू ककसी प्रकार का यात्रा भत्ता देय नह ं होगा।

viii) कायत के दौरान भ्रमण के शलए के राज्य कशमतयों को देय िेतनमान् �0 9300-

34800 ग्रेड पे �0 4200 के अनुसार यात्रा भत्ता अनुमान्य होगा। स्र्थानीय पररिहन हेतू

सक्षम स्तर से पूिातनुमतत प्राप्त करना आिश्यक होगा।

ix) प्रततमाह मानदेय / भत्ता का भुगतान तनयंत्री पदाथधकार को उपलब्ध आिंटन

/राशि से भुगतान ककया जायेगा।

x) काशमतक एिं प्रिासतनक सुधार तर्था राजभार्ा विभाग, झारखण्ड, रांची एिं वित्त

विभाग, झारखण्ड, रांची के द्िारा समय-समय पर तनगतत तनयम, अथधतनयम के

अनु�प सेिा ितों को लागु ककया जा सके गा।

16

xi) चयतनत अभयर्थी को देय छुट्ट एिं अनुमान्य अन्य सुविधा िह होगी जो

काशमतक एिं प्रिासतनक सुधार तर्था राजभार्ा विभाग, झारखण्ड, रांची के पररपत्र के

द्िारा तनगतत है, या समय-समय पर संसोथधत आदेि लागु ककया जायेगा।

xii) तनदेिक, भूशम संरक्षण, झारखण्ड, रांची को उपयुततत ितों के शिथर्थल या

अततररतत ितें तनधातररत करने का अथधकार सुरक्षक्षत रहेगा।

ह०

तनदेिक, भूशम संरक्षण,झारखण्ड, रांची

29. Thus, it is evident that the petitioner has accepted the terms and

conditions of the aforesaid appointment and as such, he has been

discharging his duty. His services have been renewed also for substantive

period but subsequently his service has not been extended which compelled

the writ petitioner to approach this Court by filing writ petition being

W.P.(S) No.2597 of 2023 seeking a direction for extension of the period of

his contract but the learned Single Judge has declined to pass any positive

direction in favour of the petitioner.

30. It would be evident from the terms and conditions of the contract

wherein the petitioner has accepted the same and one of the terms and

conditions is that the services of the petitioner is purely on contract and

initially it will be valid for a period of one year and depending upon the

satisfactory service, the period of contract can be extended. The said terms

and conditions have been accepted by the appellant and now he wants to get

extension in the contract.

31. Further law is well settled that once the terms and conditions have been

entered into between the parties, it is not available for the parties to take “U”

turn by questioning the terms and conditions and in such circumstances, it is

not available for the Court of Law in exercise of power of judicial review to

goby to the terms and conditions of the contract otherwise the same is to be

re-writing the terms and conditions of the contract, reference in this regard is

made to the judgment rendered by the Hon’ble Apex Court in the case of

State of Bihar v. Industrial Corporation (P) Ltd. [(2003) 11 SCC 465]

wherein at paragraph 29, it has been held as under:

“29. As is evident, the appellants have sought to exercise

their statutory power and not a contractual obligation.

Reliance placed in this behalf by Mr. Ray on State of

Orissa v. Narain Prasad [(1996) 5 SCC 740] is not apposite

17

in the fact situation obtaining herein. The respondents

therein were the highest bidders in respect of the various

liquor shops in Orissa. Their bids were accepted. They

executed agreements in the prescribed form and were issued

licences. Each of them had undertaken under the

agreement/contract to lift a particular specified quantity of

liquor every month. They carried on their business in terms

of the licences but failed to lift the agreed minimum

guaranteed quantity and further failed to remit the excise

duty as provided under Rule 6-A. It was, in that situation,

this Court observed : (SCC p. 752, para 21)

“A person who enters into certain contractual

obligations with his eyes open and works the entire

contract, cannot be allowed to turn around, according

to this decision, and question the validity of those

obligations or the validity of the Rules which constitute

the terms of the contract. The extraordinary

jurisdiction of the High Court under Article 226, which

is of a discretionary nature and is exercised only to

advance the interests of justice, cannot certainly be

employed in aid of such persons. Neither justice nor

equity is in their favour.”

32. Further, the Hon'ble Apex Court in the judgment rendered in Vice-

Chairman and Managing Director, A.P. Sidc Ltd. v. R. Varaprasad [(2003)

11 SCC 572] at paragraph 12 been held as under:

“12. This being the position both the learned Single Judge

and the Division Bench of the High Court were not right in

taking a contrary view that the benefits available under the

Scheme and terminal benefits should be reckoned and

calculated as on the date of actual relieving of the

employees notwithstanding the cut-off date mentioned by the

Corporation and accepted by the employees. An employee

even after accepting his application could not be relieved

18

unless the entire amount to which he was entitled under the

Scheme was paid. Such payment depended on making funds

available by the State Government. All employees who

accepted VRS could be relieved at a time or batch by batch

depending on availability of funds. Further funds may be

made available early or late. If the argument of the

respondents that relieving date should be taken as effective

date for calculating terminal benefits and financial package

under VRS, the dates may be fluctuating depending on

availability of funds. Hence it is not possible to accept this

argument. When the employees have opted for VRS on their

own without any compulsion knowing fully well about the

Scheme, guidelines and circulars governing the same, it is

not open to them to make any claim contrary to the terms

accepted. It is a matter of contract between the Corporation

and the employees. It is not for the courts to rewrite the

terms of the contract, which were clear to the contracting

parties, as indicated in the guidelines and circulars

governing them under which Voluntary Retirement Schemes

floated.”

(Emphasis Supplied)

33. It need to refer herein that question fell for consideration before the

Hon'ble Apex Court in the case of Official Liquidator v. Dayanand [(2008)

10 SCC 1] as under paragraph 65 as to whether in exercise of the power

vested in it under Article 226 of the Constitution of India, the High Court

can issue a mandamus and compel the State and its

instrumentalities/agencies to regularise the services of temporary/ad

hoc/daily wager/casual/contract employees.

34. The Hon'ble Apex Court while answering the issue has considered the

various judgments of its own Court and has to come to conclusive finding

that the High Court sitting under Article 226 of the Constitution of

India cannot compel the state machinery by issuing command to regularize

the services of temporary/ad hoc/daily wager/casual/contract employees.

19

35. The Hon'ble Apex Court further in the judgment rendered in Union of

India v. All India Trade Union Congress [(2019) 5 SCC 773] has been

pleased to hold that about essential condition for entitlement for

regularization in service that only long years of service cannot by itself be a

ground for regularization. The High Court in exercise of its extraordinary

power under Article 226 of the Constitution can do is to direct the

Government to consider for framing an appropriate scheme having regard to

the facts and circumstances of any case but not beyond it. It is only in an

exceptional case where the Court considers it proper to issue appropriate

mandatory directions it may do so but not otherwise.

36. Reference in this regard be made to paragraph 15 of the judgment,

which reads as under:

“15. The High Court failed to see that it is not the function

of the courts to frame any scheme but it is the sole

prerogative of the Government to do it. All that the High

Court, in exercise of its extraordinary power under

Article 226 of the Constitution, can do is to direct the

Government to consider for framing an appropriate scheme

having regard to the facts and circumstances of any case

which this Court did in Vartak Labour Union (2) [Union of

India v. Vartak Labour Union (2), (2011) 4 SCC 200 : (2011)

1 SCC (L&S) 659] but not beyond it. It is only in an

exceptional case where the Court considers it proper to

issue appropriate mandatory directions it may do so but not

otherwise.”

37. Since herein the writ petitioner has accepted the offer of appointment,

which has been made on contract and is being governed with their own

rules therefore, once having accepted the terms of the contract and rendered

his services, he cannot turn around since, the writ petitioner is the engagee

on contract basis depending upon the contract and as such on that count also

there cannot be direction under Article 226 of the Constitution of

India otherwise the same will amount to re-writing the contract, which is not

permission in law.

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38. The admitted facts since herein is that the appellant has been

appointed on the contractual basis and one of the conditions is that the terms

and conditions can be rescinded at any time and the extension is one of the

conditions depending upon the satisfactory service of the candidate. The

further condition is that the appointment will be purely on the basis of the

contract. Since the petitioner is a party to the said contract and if the period

of contract has not been extended it cannot be said that the authority while

doing so has flouted the terms and conditions of the appointment.

39. This Court, in view of the aforesaid discussion, both on law and fact,

is of the view that both the issues are to be answered against the appellant,

accordingly, answered.

40. This Court after having answered the issues and adverting to the

findings recorded by the learned Single Judge in the impugned order,

particularly, at paragraph no. 44 from where it is evident that since the

appellant was appointed on contract basis and, as such, his service has not

been extended it cannot be said that there is any infringement of the legal

vested right of the petitioner. Since the learned Single Judge has taken the

aforesaid view which according to our considered view, based upon the

aforesaid discussions made hereinabove, cannot be said to suffer from any

error.

41. This Court, in the entirety of the facts and circumstances of the case,

is of the view that the instant appeal has no merit which is, accordingly,

dismissed.

42. Pending I.A, if any, stands disposed of.

(Sujit Narayan Prasad, A.C.J.)

(Sanjay Kumar Dwivedi, J.)

Sudhir

AFR