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2008 DIGILAW 670 (ORI)

Rasmikanta Satpathy v. Union of India

2008-08-08

I.MAHANTY, L.MOHAPATRA

body2008
JUDGMENT I. MAHANTY, J. — The petitioner Sri Rashmikanta Satpathy has sought to challenge the order dated 3.1.2000 passed by the Central Administrative Tribunal in O.A. No.127 of 1998 whereby the Tribunal has rejected the prayer of the petitioner for regu¬larization of his service notwithstanding the fact that the petitioner had been selected for the special qualifying examina¬tion meant for the regularization of service which has not taken place till date. 2. The petitioner is a graduate from Utkal University and after acquiring such qualification, he registered his name in the Employment Exchange at Bhubaneswar. The Employment Exchange referred the name of the petitioner to the opposite party No.3, i.e., Deputy Director, Weaver’s Service Centre, Bhubaneswar for the post of Lower Division Clerk (LDC) on adhoc basis for a period of 89 days as the petitioner, having been duly sponsored by the Employment Exchange along with other candidates appeared in an interview board held on 11.8.1995 and after completion of the said interview, the petitioner stood first in the merit list and accordingly, he was offered employment by opposite party No.2, i.e., Director of Weaver’s Service Centre, Guwahati. The petitioner joined in his post under the Deputy Director, Weaver’s Service Centre, Bhubaneswar and upon satisfaction of the perform¬ance of the petitioner, his services were extended from time to time by issuing various orders with artificial breaks. In the year 1996, the Union of India in the Ministry of Textiles afford¬ed an scheme for regularization of Adhoc appointments in Weavers’ Service Centres and accordingly, prescribed proforma was issued to the petitioner for making necessary application. It is further stated that the petitioner had duly filled up the said prescribed proforma since he satisfies the eligibility conditions and the said application was duly forwarded to the opposite party No.1- Ministry of Textiles on 15th January, 1997. It is also stated by the petitioner that opposite party No.3- Deputy Director, Weavers Service Centre, Bhubaneswar also recommended the case of the petitioner for regularization and since no action was taken on the said matter, certain reminders were sent to opposite party No.1 from time to time by the opposite party No.3 but in vein. 3. It is also stated by the petitioner that opposite party No.3- Deputy Director, Weavers Service Centre, Bhubaneswar also recommended the case of the petitioner for regularization and since no action was taken on the said matter, certain reminders were sent to opposite party No.1 from time to time by the opposite party No.3 but in vein. 3. It appears that since no response came from opposite party No.1 despite reminders being sent by the Deputy Director, Weavers’ Service Centre, Bhubaneswar (O.P.3) and since no further action was taken by opposite party No.2- Director, Weavers’ Service Centre, Guwahati to extend the services of the petitioner, the petitioner was compelled to file an application before the Central Administrative Tribunal, Cuttack Bench, Cut¬tack and the same was registered as O.A. No.127 of 1998. This Original Application came to be disposed of by the Tribunal with a direction that since the post of Lower Division Clerk has to be filled up by persons who qualify in the Recruitment Examination conducted by Staff Selection Commission, regularization cannot be done dehors the Recruitment Rules and as the applicant had not come through the Staff Selection Commission either originally or through the Special Qualifying Examination, the petitioner’s prayer for regularization was held to be without any merit. 4. Mr. Satpathy, learned counsel appearing for the petitioner at the outset submitted that the decision of the Supreme Court in case of Vijay Goyal (Smt.) & others and others v. Union of India, 1998 (1) SCC 376 supports the case of the petitioner. He further submitted that a conscious decision had been taken by the opposite party No.1 for regularization of the applicants’ services and the petitioner had been issued with the proforma application form on 12.12.1996 which he was required to fill up and send for the regularization of his adhoc appointment. It is admitted that not only the petitioner has sent his proforma application but his application had also been recommended by the Deputy Director, Weavers’ Service Centre Bhubaneswar-opposite party No.3 under cover of his letter dated 7.1.1997, 9.7.1997 and 12.2.1998 under Annexures 4, 5 and 6 respectively. It is admitted that not only the petitioner has sent his proforma application but his application had also been recommended by the Deputy Director, Weavers’ Service Centre Bhubaneswar-opposite party No.3 under cover of his letter dated 7.1.1997, 9.7.1997 and 12.2.1998 under Annexures 4, 5 and 6 respectively. It is further submitted that in similar circumstances where vacancies of Lower Division Clerks could not be filled through the medium of subor¬dinate service commission, the posts were filled through the Selection Committee duly constituted and the recruitment was done consistent with the eligibility conditions of age, educational qualifications and qualifying in the typing test as prescribed in Recruitment Rules and the petitioner satisfies all the condi¬tions. It is further averred that such regularization of adhoc services of Lower Division Clerks against the regular post had already taken place in stations at Bhagalpur, Chomoli and Guwa¬hati where the counter parts of the petitioner who were otherwise junior to him were regularized in service. 5. Learned counsel appearing for the Union of India-opposite party, on the hand, stated that regularization of the petitioners’ service should not be allowed, since the posts of Lower Division Clerks under the Weavers’ Service Centre under the Ministry of Textiles were not filled up by the competent authori¬ty and the petitioner had been employed on purely temporary and adhoc basis on fixed pay for limited period of time or till such time the vacancy was filled on a regular basis. He further as¬serts that although the petitioner was initially appointed on adhoc basis against the regular post of Lower Division Clerk, subsequent regularization of the other persons at other centres was done maintaining proper procedure by the competent authority and, therefore the case of the petitioner could not be put at par with that of the other persons who have been regularized. It is asserted that since the Ministry of Textiles did not agree for further extension of the service of the petitioner and the peti¬tioner has not passed the test contemplated for regularization, the prayer made by the petitioner may not be allowed. 6. It is an admitted fact that the petitioner was appoint¬ed temporary on adhoc basis for a period of 90 days w.e.f. 17.8.1995 and continued till the order of the Tribunal was passed on 3.1.2000 i.e., more than for a period of 5 years. 6. It is an admitted fact that the petitioner was appoint¬ed temporary on adhoc basis for a period of 90 days w.e.f. 17.8.1995 and continued till the order of the Tribunal was passed on 3.1.2000 i.e., more than for a period of 5 years. It is also an admitted fact that the petitioner’s case had been sponsored by the Deputy Director, Weavers Service Centre, Bhubaneswar-O.P.3 to appear in the proposed special qualifying examination for regu¬larization of adhoc Lower Division Clerks in Weavers’ Service Centre vide office letter dated 7.1.1997 and till date, no such examination has been conducted for regularization. It is also an admitted fact that the petitioner while working as Lower Division Clerk on temporary adhoc basis, fulfilled all the required quali¬fications, typing examination and other eligibility for the special qualifying examination for regularization. In the counter affidavit filed by the opposite parties and in particular paragraph-12 thereof, the following stand has been taken: “That in reply to the averments made in para-5 of the writ petition, the respondents humbly submit that during the year 1996 the respondent No.1 had issued a circular vide letter No.C-13019/1/96 - DCH/E.II, Dated 12.12.96 stating that the ad hoc/daily rated/Casual L.D.C.s/Stenographers Grade-III/D who fulfilled the eligibility conditions might be allowed to sit for a Special qualifying examination and those who qualifies in the Special qualifying Examination would be regularized from the date of announcement of the results of the special qualifying examina¬tion by the Staff Selection Commission in the same post and in the same office in which they were working. Accordingly the name of Shri Rashmi Kanta Satpathy was recommended by the Respondent No.3. The above information regarding the special examination to be conducted by the Staff Selection Commission was given due circulation but that was not conducted by the Commission.” 7. From the above, it would be clear that while the peti¬tioner was appointed against a temporary vacant post of Lower Division Clerk caused due to adhoc promotion of a regular incum¬bent, the vacancy so created in the grade of Lower Division Clerk automatically becomes regular. From the above, it would be clear that while the peti¬tioner was appointed against a temporary vacant post of Lower Division Clerk caused due to adhoc promotion of a regular incum¬bent, the vacancy so created in the grade of Lower Division Clerk automatically becomes regular. If the said post becomes regular by virtue of the regular incumbent having been promoted on regu¬lar basis then the case of the present petitioner becomes identi¬cal to that of others who were initially appointed on adhoc basis against regular posts of Lower Division Clerks in different areas and subsequently, have been regularized maintaining the proper procedure by the competent authority. It is clear that the Selec¬tion Committee is competent to conduct the selection test made for the Department to regularize the service of the Lower Divi¬sion Clerk and in the instant case, the initial appointment of the petitioner was not held by way of pick and choose through the Special Employment Exchange where number of candidates had faced that interview and the petitioner had been found as most superi¬or. Since it is the fact that the recommendations made by the Deputy Director, Weavers Service Centre, Bhubaneswar-opposite party No.3 under Annexures 4, 5 and 6 confirming the fact that the petitioner fulfils all the required qualifications, typing experience and other eligibility for regularization, it cannot be said that the petitioner has not been selected through the proper procedure. 8. In the judgment of the Hon’ble Supreme Court in the case of Vijay Goyal (supra), the fact of the present case square¬ly apply to the facts of the said case and in particular, para¬graphs-12 and 16 of the said judgment are quoted hereinbelow : “12. Be that as it may. The question that arises for our consideration is: If the appellants were appointed on ad hoc basis from the start and if not were the orders regularizing their services necessary. We have seen that recruitment to the LDCs in the hospital is governed by the statutory rules framed by the Central Government under proviso to Article 309 of the Con¬stitution. It is nobody’s case that the appellants did not fulfil the requisite qualifications or that they did not qualify the typing test with the speed 30 w.p.m. as required by the rules. It is also not disputed that the appellants were selected after they had undergone the process of selection by the Selec¬tion Board. It is nobody’s case that the appellants did not fulfil the requisite qualifications or that they did not qualify the typing test with the speed 30 w.p.m. as required by the rules. It is also not disputed that the appellants were selected after they had undergone the process of selection by the Selec¬tion Board. It is correct that by subsequent government resolu¬tion the test was to be conducted by SSC and so also selection for appointment to the post of LDC. We need not go into the ques¬tion if in the existence of the statutory rules could they be amended to the extent that certain functions were left to be performed by SSC and not by the DPC. It is not that the SSC could prescribe any qualifications different than that prescribed in the Recruitment Rules for appointment to the post of LDCs. The fact, however, remains that when the hospital authorities ap¬proached the SSC it expressed its inability to conduct the test and select candidates for appointment to the post of LDCs in the hospital and rather told them that the authorities could them¬selves make arrangement to fill up the vacancies through other authorized channels if it was urgent. SSC did not say that the authorities could fill up the vacancies on ad hoc basis only till such time candidates sponsored by SSC were made available to the hospital. In pursuance of the communication received from the SSC the hospital authorities asked the local employment exchange to sponsor candidates and at the same time issued a circular allow¬ing the eligible departmental candidates to apply for the post of LDCs. The posts were in existence. The authorities fell back on the Recruitment Rules, conducted the examination, found the appellants to fulfil the qualifications and then selected them by duly constituted DPC. The respondents have neither stated nor contradicted that the selection of the appellants was not in conformity with the Recruitment Rules. That being so we fail to see why the order of 19.5.1986 regularizing the services of ad hoc LDCs including the petitioners should have been cancelled on technical grounds five years after they had been regularized and absorbed in the cadre. 16. We are also aware of the decision of this Court that there cannot be any claim for regularization for having worked for a number of years if the regularization was not in accordance with the rules. 16. We are also aware of the decision of this Court that there cannot be any claim for regularization for having worked for a number of years if the regularization was not in accordance with the rules. That is not so here. As noted above in the present case appointments were made in accordance with the Rules which appointments have continued for a number of years and cannot be treated as ad hoc or fortuitous.” The aforesaid judgment of the Hon’ble Supreme Court was relied upon by the Central Administrative Tribunal, Calcutta Bench, Calcutta in O.A. No.779 of 2004 who by the judgment dated 31st January, 2008 have been pleased to direct that the applicant therein was entitled to be considered for regularization from the date regular vacancy to the post of Lower Division Clerk was available in the office of the Weavers’ Service Centre, Calcutta. 9. In terms of the judgment of the Hon’ble Supreme Court as well as the judgment of the Central Administrative Tribunal, Calcutta Bench, Calcutta referred hereinabove, we are of the view that both the decisions fit into the present case at hand and the staff Selection Commission having exhibited its inability to conduct selection of Lower Division Clerks and since the peti¬tioner had been sponsored by the Employment Exchange and the petitioner was chosen from out of numerous candidates appeared in the interview, the petitioner had been selected by the Deputy Director, Weavers Service Centre, Bhubaneswar and his satisfac¬tion by observing the petitioner in both the fields of qualifica¬tion and typing experience etc., the petitioner is entitled to be considered for regularization to the post of Lower Division Clerk available in the office at the Weavers' Service Centre, Bhubaneswar. 10. In view of the observations made, the impugned judgment dated 3.1.2000 passed by the Central Administrative Tribunal in O.A. No.127 of 1998 is quashed and the writ application is al¬lowed with the declaration that the petitioner is entitled to be considered for regularization in the vacant post of Lower Divi¬sion Clerk at Weavers’ Service Centre, Bhubaneswar on a regular basis and the opposite parties are directed to regularize the appointment of the petitioner as Lower Division Clerk in the aforesaid centre within a period of six weeks from the date of communication of this judgment. It is made clear that the peti¬tioner be granted his continuance in service and all other serv¬ice benefits including seniority but in the circumstances with no back wages. The petitioner shall be entitled actual pay and allowances from the date of expiry of six weeks. L. MOHAPATRA, J. I agree. Application allowed.