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2007 DIGILAW 486 (CAL)

UNION OF INDIA v. ASHOK BISWAS

2007-07-03

BHATTACHARYYA, PRASENJIT MANDAL

body2007
( 1 ) ALL these five writ applications were heard together as those are preferred against a common order dated May 25, 2007 passed by the Central administrative Tribunal, Calcutta Bench (Circuit at Port Blair) thereby disposing two applications under section 19 of the Administrative Tribunals act (hereinafter referred to as the Act ). ( 2 ) O. A. No. 3/an/2007 was filed by one T. Wajith, while the other application being O. A No. /an/2007 was filed by 23 other persons before the Tribunal thereby, inter alia, praying for directing (1) Union of India, (2) The Lieutenant governor, A and N Islands, (3) The Chief Secretary, A and N Administration, (4), the Secretary, Andaman Public Works Department, (5) The Chief Engineer, andaman Public Works Department and (6) The Assistant Secretary, Andaman public Works Department, to consider the case of regularization of the applicants' service or to continue the services of the applicants by not giving any effect to the Press Note dated December 14, 2006 by which the respondents invited applications from the public for filling up the vacant posts of Junior engineers. ( 3 ) BY the common order impugned herein, the Tribunal disposed of those two applications by passing the following direction: "the Department of Personnel has to judiciously consider the same. Hence, this OA is disposed of with a direction to the respondents to first take up the case with the Department of Personnel and subject to approval by the department of Personnel, afford some concession to the applicants and others similarly placed in respect of appointment to the post of Junior Engineer for which they have applied. It is sanguinely hoped that judicious consideration would be given by the respondents and the Ministry in Personnel in this regard. Till then, status quo with regard to the continuance of the contractual service of the applicant shall be maintained. No costs. " ( 4 ) THE case made out by the applicants on those two applications may be summed up thus: (a) On December 26, 2004 a demoralizing Tsunami and terrible earthquake took place in various parts of the Andaman and Nicobar Islands and the South andaman was wretchedly affected. Many buildings, structures, Government offices were damaged and destroyed. No costs. " ( 4 ) THE case made out by the applicants on those two applications may be summed up thus: (a) On December 26, 2004 a demoralizing Tsunami and terrible earthquake took place in various parts of the Andaman and Nicobar Islands and the South andaman was wretchedly affected. Many buildings, structures, Government offices were damaged and destroyed. After the devastating Tsunami and the dreadful earthquake, the inhabitants of South Andaman and the persons appointed in various places were not willing to go to the South Andaman to perform their duties in the respective posts due to non-availability of the persons in the particular fields to execute their jobs. (b) A Press Note dated March 15, 2005 was issued by the Andaman and Nicobar administration, the Andaman Public Works Department, through its E. O. under the Chief Engineer whereby "a walk-in-interview" was decided to be conducted for appointment of persons as Junior Engineer (Civil) and Junior engineer (E and M) on short term contract basis at a consolidated salary of rs. 8550/- p. m. for working in the Southern Groups of Islands. (c) The applicants came forward to render their services and accordingly, pursuant to the said notice applied to the concerned authorities to perform the task of rehabilitation work. During that period, no Government Servants were eager to come to the Southern Groups of Islands for rehabilitation works and on the decision of the Administration to engage local youths on contractual basis in most of the departments, the applicants were successful in the interview and accordingly, they were appointed in the posts of Junior engineer (Civil and E and M) to work in those affected areas. (d) The applicants through the D. P. C. were appointed on contractual basis against the regular vacancies and were posted at the District of Nicobar. The appointment was initially given for six months on the basis of office order dated 23rd March, 2005 and 28th March, 2005 respectively. (e) The authorities subsequently issued office orders dated 20th September, 2005 extending the contractual appointment of the applicants for a further period of six months in the same posts. The authorities again on 9th March, 2006, by an office order, extended the duration of service for a further period of six months and by further order dated 20th June, 2006 the services of the applicants were further extended. The authorities again on 9th March, 2006, by an office order, extended the duration of service for a further period of six months and by further order dated 20th June, 2006 the services of the applicants were further extended. Ultimately, by office order dated 20th september, 2006 the authorities further extended the service period for a period of three months. (f) On 24th February, 2006 and again on 2nd November, 2006 the respondent issued notices in the Telegram whereby the vacancies in the posts of Junior engineers had been notified and on the basis of those notifications, the applicants applied for appointment in those vacant posts. From the Press note dated 14th December, 2006 it would be evident that the Employment exchange, Port Blair, had sponsored names of candidates for Junior engineers (Civil and E and M), Draftsman (Civil) in APWD and the names of the applicants were also sponsored. (g) The applicants apprehended that their services might be terminated without considering the role played by them at the crucial juncture and also the dedicated service rendered by them for the nation and as such, they filed a representation to the respondent authority for considering the case of absorption. (h) The respondents should be therefore directed to consider the applicants for the vacant posts by absorbing them. ( 5 ) THE application was contested by the respondents by filing written objection and according to the respondents, the applicants being appointed purely on contractual basis and that too, for limited period, to meet with the exigency of the situation, no question of absorbing them on permanent basis arose. According to the respondents, the applicants could apply for the vacant posts and their cases would be considered along with other candidates who have applied for those posts. ( 6 ) BY the order impugned herein the Tribunal has disposed of those two applications by passing the orders impugned as indicated earlier. ( 7 ) BEING dissatisfied, the Union of India have preferred two of the aforesaid five writ applications while the two sets of the applicants under section 19 of the Act have preferred the other two writ applications challenging the self-same order passed by the Tribunal. ( 7 ) BEING dissatisfied, the Union of India have preferred two of the aforesaid five writ applications while the two sets of the applicants under section 19 of the Act have preferred the other two writ applications challenging the self-same order passed by the Tribunal. The fifth writ application being WPCT No. 117 of 2007 has been filed by one Abani Howlader, who was one of the interveners before the Tribunal whose prayer was that a direction should be given to the Administration to conclude the regular process of selection for the sanctioned posts for which they applied and had been successful. ( 8 ) THE grievance of the Union of India in these two applications is that the direction given by the Tribunal was illegal and the Tribunal ought to have dismissed those applications filed by the applicants; while the objection of the applicants in the other two applications is that it was the duty of the Tribunal to pass necessary order specifically directing the respondents to absorb the applicants in those posts instead of passing a mere direction for considering the case of the applicants sympathetically. Abani, the petitioner in the fifth writ application, has supported the contentions of the Union of India and has prayed for direction upon the administration to give effect to the process of selection and to appoint the successful candidates. ( 9 ) MR. Mandal, learned Government Pleader appearing on behalf of the union of India, has vehemently contended before us that the applicants under section 19 of the Act having been appointed purely on temporary and contractual basis cannot have any right of absorption in the regular vacant posts and as such, the Tribunal should not have passed any direction upon his clients to consider their case in an out of the ordinary way. According to Mr. Mandal, the applicants, having been appointed not on the basis of regular process of recruitment but purely as a stopgap arrangement for the purpose of meeting the need of emergency, cannot claim the absorption in the permanent vacancy. ( 10 ) IN support of such contention, Mr. According to Mr. Mandal, the applicants, having been appointed not on the basis of regular process of recruitment but purely as a stopgap arrangement for the purpose of meeting the need of emergency, cannot claim the absorption in the permanent vacancy. ( 10 ) IN support of such contention, Mr. Mandal relies upon the following decisions of the Supreme Court: (1) Indian Drugs and Pharmaceutical Ltd. vs. Workmen reported in 2007 (1)SCC 408 ; (2) Maruti Udyog Ltd. vs. Ram lal reported in 2005 (2) SCC 638 ; (3) Accounts Officer (A and I) A P. SRTC and Ore. vs. P. Chandra Sekhara Rao and Ors. reported in 2006 (7) SCC 488 ; (4) Surinder Prasad Tiwari vs. U. P. Rajya Krishi Utpadan Mandi Parishad and Ors. reported in 2006 (7) SCC 684 ; (5) State of U. P. and Ors. vs. Desh Raj reported in 2007 (1) SCC 257 ; (6) The secretary, State of Karnataka vs. Uma Debi and Ors. , reported in 2006 (4) SCC 1 . ( 11 ) MR. Roy and Mr. Tabraiz, the learned Advocates appearing in support of the other two writ petitions filed by the applicants under section 19 of the Act have, on the other hand, opposed the aforesaid contentions advanced by Mr. Mandal and have contended that the Tribunal instead of merely expressing a desire should have passed specific direction upon the administration to absorb their clients in the vacant posts. They contend that at the time of disaster, their clients alone came forward for the purpose of meeting the emergent situation and as such, the administration should be directed to give preference to their clients and pass a direction for absorption. They contend that their clients were appointed not by any backdoor process but on the basis of regular process of selection and therefore, the principle laid down by the Apex Court in the case of Secretary, the State of Karnataka vs. Uma Devi and Ors. , reported in 2006 (4) SCC 1 relied upon by Mr. Mandal cannot have any application. They submit that these are the exceptional cases pointed out by the Apex Court in the aforesaid decision. , The learned Advocates, therefore, pray for direction upon the administration to absorb their clients either in the APWD or in any other department of the administration. Mandal cannot have any application. They submit that these are the exceptional cases pointed out by the Apex Court in the aforesaid decision. , The learned Advocates, therefore, pray for direction upon the administration to absorb their clients either in the APWD or in any other department of the administration. According to them, the doctrine of legitimate expectation' should be invoked in the facts of the present case. They point out that in other departments of the Administration, there are instances where persons appointed on contractual basis were subsequently absorbed by formation of a scheme and in such a situation, it was the duty of the Tribunal to pass a direction for framing of such a scheme. ( 12 ) MRS. Nag, the learned Counsel appearing for Abani, the petitioner in the fifth writ application, has adopted the contentions of Mr. Mandal and in addition to those, contended that the applicants under section 19 of the Act were appointed without following the rules of reservation for ST and OBC and as such, if they are absorbed, those backward-class candidates would be deprived of their right to get the benefit of reservation guaranteed under the Constitution. Mrs. Nag further contends that the advertisement on the basis of which the applicants under section 19 of the Act were appointed gave less than 48 hours of notice for appearing at the interview, as a result, all the eligible candidates of the Islands were not in a position to appear and take the benefit of the said selection. Therefore, according to Mrs. Nag, the previous selection on emergent basis was virtually no selection in the eye of law as the same was done even without giving proper advertisement and without giving the candidates sufficient time to apply and appear at the interview. She, therefore, prays for outright dismissal of the two applications under section 19 of the Act. Therefore, according to Mrs. Nag, the previous selection on emergent basis was virtually no selection in the eye of law as the same was done even without giving proper advertisement and without giving the candidates sufficient time to apply and appear at the interview. She, therefore, prays for outright dismissal of the two applications under section 19 of the Act. ( 13 ) THEREFORE, the questions that arise for determination in these applications are whether by virtue of the contractual appointment for six months which was extended thrice, a right had accrued in favour of the applicants under section 19 of the Act so that they could be absorbed in the regular vacancy without following the process of selection by depriving the other applicants in regular course who have the right to be considered for the vacant posts concerned and whether the doctrine of legitimate expectation comes into play in aid of the applicants under section 19 of the Act before the Tribunal. ( 14 ) AFTER hearing the learned Counsel for the parties and after going through the materials on record we find that the applicants before the Tribunal got appointment not by following the regular process of selection but in an emergent basis by way of 'walk-in-interview'. The advertisement for such walk-in-interview was given in the newspaper on 15th March, 2005 asking the applicants to appear at the interview to be held on 17thmarch, 2005. In the said process of selection, there was no reservation for Scheduled Tribes and Other Backward classes as maintained in these Islands. In the advertisement, it was specifically mentioned that the appointment would be on contractual basis for six months on a consolidated amount of pay of Rs. 8550/- a month. There was no scope of any increment nor was any scale of pay mentioned in the said advertisement. It is true that subsequently, the period of service was extended thrice but the total period of employment even did not exceed two years and when regular advertisement was given for filling up the sanctioned vacant posts by following the regular process of selection, all the applicants before the Tribunal applied for those vacancies in accordance with the advertisement given. Only one of the applicants before the Tribunal, viz. Only one of the applicants before the Tribunal, viz. T Wajith filed application before Tribunal before the publication of result of the regular process of selection but the other applicants approached the Tribunal after the result of the selections was made known and they were found to be unsuccessful. ( 15 ) ON consideration of the aforesaid factual features, we are of the view that the decision of the Supreme Court in the case of Secretary, the State of karnataka vs. Uma Devi and Ors. (supra) relied upon by Mr. Mandal, learned government Pleader, is clearly attracted in the facts of the present cases. All the applicants before the Tribunal, before getting job on the basis of their walk-in-interview, well knew that such job was offered to them on contractual basis on a fixed remuneration for a limited period and there was no scope of absorption in the regular vacancy which would be filed up by following due process of recruitment. Moreover, as indicated earlier, hardly 48 hours' time was given for appearing at such interview and therefore, even other eligible persons having requisite qualifications could not apply for the job within such a short period. There are qualified persons of the Islands who are employed elsewhere and even there are unemployed persons in the remote places of the Islands for whom it was impossible to respond to the said advertisement within such a short notice of 48 hours. Therefore, the said advertisement was not an advertisement in the real sense of the term giving sufficient time for the eligible candidates to apply. ( 16 ) WE are unable to accept the contention of Mr. Roy and Mr. Tabriaz, the learned Advocates appearing on behalf of the applicants before the Tribunal that their clients had also undergone 'due process of selection', that there was no difference between the process undergone by their clients and the regular process of selection for the filling up for the sanctioned vacant posts and were thus, eligible to be absorbed for even the regular vacancy. We find substance in the contentions of Mr. Mandal and Mrs. We find substance in the contentions of Mr. Mandal and Mrs. Nag the learned Advocate appearing on behalf of the administration and the intervenor before the Tribunal respectively, that the applicants before Tribunal participated in the interview on the basis of advertisement which specifically described the jobs as temporary and on contractual basis on a fixed remuneration whereas many brilliant candidates having requisite qualifications were not interested in such temporary job, but, when time came for filling up the regular vacancies by following the regular process of recruitment, they cannot be deprived of their right to complete for those posts simply because they either did not get opportunity to appear at the walk-in-interview within the short span of time or deliberately decided not to go for that temporary job. ( 17 ) WE also find substance in the contention of Mrs. Nag that while selecting the applicants before the Tribunal for the job of temporary duration, the policy of reservation was totally given a go-bye. Therefore, if any direction is given for absorbing the applicants before the Tribunal in the sanctioned vacancies without following the regular process of selection, such direction will infringe articles 14 and 16 of the Constitution of India thereby not only taking away the right of the eligible candidates in the Islands for being appointed to the sanctioned posts but also will discharged the rules of reservation for the scheduled Tribe and other backwards classes. ( 18 ) IT appears from the order impugned that the Tribunal was swayed by sympathy. The sympathy cannot replace law and in the process, the mandatory provisions of the Constitution cannot be ignored. ( 19 ) WE, therefore, find that no direction should be given upon the administration to consider the case of the applicants before the Tribunal by giving any special privilege. We have already pointed out that once they were appointed on contractual basis, no legal right accrued in their favour for being considered for appointment to the sanctioned vacancy without following due process of selection. ( 20 ) WE are also not at all impressed by the submission of Mr. Roy and Mr. Tabriaz that the doctrine of legitimate expectation comes into play in the present case. ( 20 ) WE are also not at all impressed by the submission of Mr. Roy and Mr. Tabriaz that the doctrine of legitimate expectation comes into play in the present case. As pointed out by the Supreme Court in the case of Uma Devi (supra), at paragraph 47 of the judgment that when a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature and such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the sanctioned post could be made only by following a proper procedure of selection. The present cases do not come even within the exceptions pointed out by the Apex Court in the case of Uma Devi (supra), at paragraph 53 of the judgment as the earlier advertisement was not for filling up sanctioned vacancies and at the same time, the total period of employment of the applicants did not exceed even two years when the advertisement was given for filling up regular vacancies. ( 21 ) WE are also not impressed by the extreme submissions of Mr. Roy and mr. Tabriaz that simply because in these Islands some other department of the administration had, in the past, framed schemes for absorbing the persons selected through process other than regular process of selection, we should also pass such direction upon the administration for framing similar scheme. Even if any such scheme was earlier framed in violation of the Constitutional scheme of employment in the Government service, such illegal act of the administration cannot confer any right upon their clients to have a direction from the Tribunal or this Court upon the administration to repeat such wrong. ( 22 ) MR. Tabriaz, as a last resort, prayed for time for filing supplementary affidavit for the purpose of bringing on record the fact that his clients have definite instruction that the administration has decided to take step for extension of the service of his clients or for framing a scheme of their rehabilitation. Such allegation is strongly disputed by Mr. Mandal appearing on behalf of the administration. Such allegation is strongly disputed by Mr. Mandal appearing on behalf of the administration. Be that as it may within the scope of these applications, we do not find any reason to enter into such fact as we have limited our scrutiny to the materials on record and also within the extent of the two applications filed before the Tribunals which are the subject-matters before us. ( 23 ) ON consideration at the entire materials on record, we, therefore, find that the Tribunal erred in law in passing direction upon the administration to consider the case of the applicants in a partisan way thereby violating the provisions of Articles 14 and 16 of the Constitution of India Those two cases filed before the Tribunal deserved outright rejection in view of the decision of the Supreme Court as pointed above. ( 24 ) WE, therefore, set aside the order passed by the Tribunal below and hold that the two applications filed before the Tribunal were devoid of any substance and should have been dismissed. ( 25 ) ACCORDINGLY, we allow the two writ applications filed by the administration and dismiss the other two applications filed by the applicants before the Tribunal. ( 26 ) IN view of our above decision, the fifth writ application filed by Abani howlader is bound to succeed and we, accordingly, direct the administration to give effect to the process of selection that had been initiated for filling up vacant posts of Junior Engineer and to conclude the process of selection by giving appointments to the successful candidates within one month from today. ( 27 ) IN the facts and circumstances, there will be, however, no order as to costs.