Aparesh Kumar Singh, J. - (1.) HEARD learned counsel for the parties.
(2.) IN the present set of writ petitions, common grievance has been raised seeking confirmation in service under Commercial Taxes Department, Government of Jharkhand. Petitioners herein are working since their appointment between 1979 -80 continuously even after their services got allocated to the successor State of Jharkhand, but they have not been granted financial up -gradation apparently on the ground that their services were not confirmed. Individual petitioners in their pleadings have sought to convey that appointment of one or other petitioners were made by virtue of proper selection exercise, which also involved interview and was against sanctioned and vacant post by the competent authority. Despite that the department did not confirm their services. Some of them have come in 2nd round after their claim have been rejected. Respondent -Department has taken a stand that there is question mark relating to appointment of several persons by the Joint Commissioner, Commercial Taxes Department (Administration), Ranchi and of different Divisions during the relevant period of time as their power were withdrawn. The case of the individual writ petitioners have been contested through earlier affidavits by the respondent -Department that they are not entitled for confirmation as the whole requirement of procedure in terms of Articles 14 and 16 of the Constitution of India was not followed. In between, petitioners cited example of two persons namely Yogendra Prasad and Surendra Choudhary, whose services were confirmed by the respondent -Department in the year 2009 -10. They also relied upon the instances of employees, who were allocated to the successor State of Bihar on bifurcation of the parent State and have been confirmed in service from the initial date of their appointment, after the department undertook an exercise of scrutiny of individual cases through three man committee in terms of the judgment rendered in the case of State of Karnataka Vs. Uma Devi & Ors. reported in : 2006 (4) SCC 1. This Court while considering the individual writ petitions on one or other dates, found that there are instances of several such persons working in the Commercial Taxes Department said to have been appointed between in the year 1979 -80 in similar manner. Considering scale of such appointment made at a particular point of time and appointees have continued in the department and also said to be enjoying regular scale of pay, but without any confirmation or regularization till date, by a detailed order passed on 12.08.2015 in W.P.(S) No. 259 of 2013, W.P.(S) No. 869 of 2013 and W.P.(S) No. 896 of 2013, this Court gave time to the respondent -department to come out with a considered stand with proper application of mind taking into regard all attendant facts, provisions of law and instances referred to therein as well. For better appreciation order dated 12.08.2015 is quoted hereinunder: - "Petitioners herein came with a prayer for confirmation of their services in absence of which financial up -gradation is not being granted to them. The petitioners herein, who have been appointed in 1979 -80 by the Joint Commissioner, Commercial Taxes (Administration), Ranchi Division, are continuing to discharge their duties in the said department till date. During course of argument, learned counsel for the petitioners has informed that there are several such persons, who are waiting for confirmation of their services, but still working in the Department. It is also informed that number of them have also retired and are receiving post retirement benefits from State Exchequer. It is also stated that for more than last 30 years all these persons are being paid their salary from State Exchequer in regular pay scale with increments and pay revision as implemented from time to time. It is also true that persons appointed during the same period by the Joint Commissioner, Commercial Taxes, whose services now fall within successor State of Bihar have been regularized or granted permanency in service from their initial date of their appointment. Such orders are enclosed to the I.A. No. 3936 of 2015 in W.P.(S) No. 259 of 2013. Such decision was taken by the successor State of Bihar by undergoing the entire process as conceived under the observation made in the judgment rendered by the Apex Court in the case of State of Karnataka Vs. Uma Devi & Ors. reported in : 2006 (4) SCC 1 through a three -man committee. It is also undisputed by the respondents that one Yogendra Prasad, who was appointed as counter clerk on 19.11.1979 by the Joint Commissioner, Commercial Taxes (Administration), Ranchi Division, his services has been confirmed w.e.f. 28.03.1983 vide Annexure -6 dated 29.09.2010 issued by the same Commercial Tax Department In the face of the aforesaid undisputed facts, the respondents while considering the case relating to confirmation of one of the present petitioner in W.P.(S) No. 259 of 2013 have chosen to reject his claim vide order dated 15.01.2015 taking a plea that the appointments were not undertaken by following due procedure of advertisement and against sanctioned post and by following reservation roster. The petitioner herein has counter claim relying upon the relevant Annexures -1, 2 and 3 that such appointments were made after advertisement, interview and selection. In any case it is within conscious knowledge of the respondent -Department that these persons have continued in service for more 30 years. It is wholly inexplicable as to why the respondents at no point earlier also took any decision in relation to question of permanency of these petitioners or regularization or termination of their services if at all there was certain irregularities/illegalities in their appointment. If these facts are true then the respondent -Department has responsibility to answer as to why they have taken a discriminatory approach vis   -vis. these petitioners or others compared to Yogendra Prasad who is serving in the same Department and may be those who were born out of the same appointment process and now stand confirmed in the State of Bihar. The only distinction to the latter example would be that the competent authority has been changed i.e. State of Bihar. However, the appointments have been made by the Authority of the parent State of Bihar in the years 1979 -80 from which source those persons falling in either of the Successor States trace their origin. It is also informed by the learned counsel for the respondent that there are several such matters pending in this Court of such persons seeking confirmation in their services. This itself depicts that the department has failed to take a considered decision in respect of the services of such employees. This Court may have been burdened by unnecessary litigation. It is, therefore, felt necessary that before adjudicating on the individual facts of one or the other petitioner, a considered response of the department after due application of mind in respect of such persons working in Commercial Taxes Department is brought forth so that there is consistency in stand of the department in respect of all such persons. Learned counsel for the petitioner has referred to decision rendered by learned Division Bench of this Court in the case of Kamal Prasad & Ors. Vs. State of Jharkhand and Ors. reported in : 2012(1) JCR 477 (Jhr) and upheld by the Hon'ble Supreme Court in Civil Appeal preferred by the State of Jharkhand reported in : (2014) 7 SCC 223 on the point that the persons who trace common origin of their appointment in the parent State of Bihar should not be discriminated in matters of confirmation or regularization only on account of historic event of creation of two successor States. It would not be out of place that Regularization Rule of 2015 has also been framed by the respondent -Government. The respondents in the present writ petitions were seeking time on all previous dates that the Regularization Rules were in the process to be framed. Impugned decision dated 15.01.2015 has however come suddenly just before framing of the Regularization Rules, 2015 vide notification dated 13.02.2015. Learned counsel for the respondent -State, therefore, is seeking short time for obtaining a considered stand of the respondent -Commercial Tax Department on such an issue which may have repercussion on a large number of employees working in the Department. It is expected that department like a model employer would come forth with a considered stand with proper application of mind taking into regard all attendant facts, provisions of law and instances referred hereinabove as well. For the aforesaid purpose, therefore the matter is adjourned to be listed on 09.09.2015. It would only be appropriate that a responsible official of the respondent -Commercial Taxes Department be also present to assist the Court with all relevant records on the next date. A copy of this order be handed over to the learned counsel for the respondent -State."
(3.) THE respondent -Department has thereafter filed supplementary counter affidavit. Learned AAG appearing on their behalf states that Department of Personnel, Administrative Reforms and Rajbhasha has notified "JHARKHAND SARKAR KE ADHINASTH ANIYAMIT RUP SE NIYUKT AWAM KARYRAT KARMIYO KI SEVA NIYAMITIKARAN NIYAMWALI, 2015" vide notification dated 13.02.2015, Annexure -A. It is also stated that pursuant to the said Rules framed in compliance of the judgment rendered by the Hon'ble Supreme Court on the subject, a committee has been constituted to consider cases of irregularly appointed employees, who are presently working vide office order dated 27.08.2015, Annexure -B. It is stated that department has further decided to consider the cases of all such employees, who are working and whose services have not been confirmed. Dates itself have been notified by the Committee for different Division under the respondent -Department. All Divisional Joint Commissioner(Administration) have been directed to be present on the date as per the direction contained in letter dated 02.09.2015, Annexure -C. Based upon the aforesaid exercise, the Department will take a final decision on the issue of regularization of the services of the employees, who are working and whose services have not been regularized. Certain averments have also been made in respect of the individual contention of the petitioner Manoj Kumar Sinha in the said affidavit as also on merit of the case. Learned AAG, however, submits that irrespective of the facts that earlier the claim of few persons have been rejected on individual consideration dehors the Regularization Rules, 2015, now since a comprehensive exercise is being undertaken in respect of all such employees appointed in that period, the respondent -department would reconsider such cases, which were earlier rejected on one or other grounds including the case of two writ petitioners in W.P.(S) No. 4114 of 2015 and W.P.(S) No. 4115 of 2015.;