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2009 DIGILAW 648 (CAL)

Rabindra Nath Ghosh v. STATE OF WEST BENGAL

2009-08-24

MRINAL KANTI SINHA, PRATAP KUMAR RAY

body2009
Judgment :- (1) Heard the learned Advocates appearing for the parties. (2) Assailing the order dated 4th March, 2009 passed in original application No.7310 of 2008 by the West Bengal Administrative Tribunal, this writ application has been filed. The impugned order reads such. "Case No. O.A.-7310/2008 04.03.09 For the application: Mr. A. Bhjattacharya, Ld. Adv. For the respondent: Mr. A.K. Roy, Ld. Adv. Petitioners have filed affidavit of service and let it kept with the record. Mr. Roy appears and represents the state respondents. The petitioners have filed this application claiming their absorption in the Irrigation and Waterways Directorate on the ground that all of them were engaged as casual labour and they have been rendering their service as such for continuous period without any interruption. The petitioners have annexed several papers to show that their case was active under consideration of the authority for some time past but till today, they have not received any further order of their absorption. The learned Adv. for the petitioners contends that some of the petitioners also participated in the selection process after being given interview letter by the appropriate authority but till today, they are not informed about the result of the selection process. Mr. Roy on instruction submits that all the petitioners were casual labour and they were never engaged against any sanctioned post and considering their status, they are not eligible for absorption. On hearing the learned Adv. of both the sides, and having regard to the nature of the documents filed with this application, we hold that this application may be disposed of at this stage without inviting any reply from the respondent authority. Admittedly, the petitioners were engaged and they rendered service in whatever status that might be and following the point of law involved in this regard, we hold that once the petitioners were engaged to render service in favour of the State Government and when they have been allowed to render such service without being terminated till today, their case cannot be left undecided for indefinite period. Thus, we dispose of this application by directing respondent No.2 to take a decision as to how and what manner the petitioners can be absorbed against available sanctioned post, commensurate with their qualification and experience. Thus, we dispose of this application by directing respondent No.2 to take a decision as to how and what manner the petitioners can be absorbed against available sanctioned post, commensurate with their qualification and experience. Since some of the petitioners were allowed to participate in the selection process, we shall direct the respondent No.2 to publish the result of the selection within 3 months and if the petitioners are found suitable for such selection, they must be absorbed against sanctioned post even condoning their age bar and this process must be completed within 2 months after publication of the result. As regards those petitioners who are yet to participate in the selection process we shall direct respondent No.2 to allow them to participate in the selection process if there is any contemplation of filling up other available sanctioned post through general selection process and the petitioners who would be permitted to appear in such selection process, if found eligible after selection should be accommodated within 3 months after holding such selection process and after condoning age bar, if any. With this observation, we dispose of this application. Plain copy to both the sides. Sd /: A.K.Patnaik Sd/: A.K.Basu Member(A) Member(J)" Before the learned Tribunal, the writ petitioners prayed for the following reliefs. "8. Relief (s) Sought: In view of the facts your applicants prayed for the following reliefs: (a) Leave be granted to move the application jointly. (b) Direction upon the respondents to absorb applicants by regularising their services against sanctioned vacant Group "D" post in State Government establishment under Damodar Irrigation Circle, Burdwan, taking into consideration not only their eligibility for such post but also their long experience for such work and fulfilment of conditions as laid down in 100-Emp dated 13.3.1996. (c) The services of applicants be regularised in any Division or Circle i.e. Damodar Head Works Division, Damodar Canal Division, Damodar Irrigation Revenue Division No. 1 and Damodar Irrigation Revenue Division No.II under Damodar Irrigation Circle, Kanainatshal, Burdwan. (c) The services of applicants be regularised in any Division or Circle i.e. Damodar Head Works Division, Damodar Canal Division, Damodar Irrigation Revenue Division No. 1 and Damodar Irrigation Revenue Division No.II under Damodar Irrigation Circle, Kanainatshal, Burdwan. (d) Such other order as to Your Lordships may seem fit and proper." In the writ petitioner, the petitioners prayed for the following reliefs : "(A) Writ in the nature of Certiorari directing that the records and the order of West Benga State Administrative Tribunal dated 4.3.2009 pertaining to O.A. No. 7310 of 2008 be produced before this Honble Court and upon perusal o the same, conscionable justice may be rendered to the petitioners by quashing the portion of the order dated 4.3.2009 to the extent it directing absorption of petitioners subject to result o interview, and to pass such other or further order or orders. (B) Writ in the nature of Mandamus commanding the respondents to regularise the services of the petitioners in the Government Establishment on the basis of the policy decision of State Government as contemplated in Memo No. 1700-EMP. dated 3.8.1979, 1650-EMP dated 28.8.1980 and 100-EMP dated 13.3.1996 forthwith. (C) Rule in terms of prayers (A) and (B) above. (D) Interim order restraining the respondents from filling up any post of Group "D" staff in regular establishment in Division or Circle i.e. Damodar Head Works Division, Damodar Canal Division, Damodar Irrigation Revenue Division No.1 and Damodar Irrigation Revenue Division No.II under Damodar Irrigation Circle, Kanainatshal, Burdwan without first absorbing the petitioners." (3) The writ petitioners before the learned Tribunal had set up a case that they were casual appointee and in terms of the circular letters of the Labour Department issued under Memo No. 100-EMP dated 13th March, 1996, Memo No. 1700-EMPL36-26/78 dated the 3rd August, 1979/16th August, 1979 No. 1650-EMP/EMP/30-5/80 dated the 28th August, 1980, they were eligible to be absorbed. It is an admitted position that the writ petitioners are causal appointee and they were not appointed following the recruitment rules as prevalent in a regular permanent post and in a regular vacancy. It is an admitted position that the concerned post is under the Government of West Bengal. Recruitment rule framed under Article 309 of the Constitution of India for appointment in Group D posts in the Government service provides advertisement of vacancies and the selection process etc. It is an admitted position that the concerned post is under the Government of West Bengal. Recruitment rule framed under Article 309 of the Constitution of India for appointment in Group D posts in the Government service provides advertisement of vacancies and the selection process etc. The writ petitioners have placed reliance for regularisation in terms of Memo No.l700-EMP/- 30-26/78 dated 3rd August, 1979/16th August, 1979 issued by the Labour Department, Government of West Bengal in support of their claim for regularisation. The circular letter reads such. "No. 1700-EMP GOVERNMENT OF Calcutta 30-26/78 WEST BENGAL the 3rd LABOUR August DEPARTMENT 1979 16.8.79 MEMORANDUM Sub: Principles to be followed in the matter of absorption of casual and such other categories of worker under the State Government. 1. Government of West Bengal have for some time past been considering the question of discontinuance of employment of casual and such other categories of workers in perennial type of work and the question of gradual absorption of all such categories of workers employed from time to time by the employing Authorities under the State Government, after careful consideration of the matter it has been decided as under: 2. Further recruitment of casual and such other categories of workers shall not be normally made. Initial recruitment of such workers, if considered unavoidable by any Employing Authority shall henceforth be invariably be through the Employment Exchanges, as already decided in the case of filling up of vacancies of non-P.S.C. non-promotional posts Ad hoc appointment of persons from the open market may, however, be made for a period not exceeding 15 days to meet any situation of emergent nature. Such ad-hoc appointees will have no claim in future for absorption in the regular establishment under the State Government. 3. Casual and such other categories of workers who have been engaged in a perennial type of work for continuous period of more than three years may be absorbed in the regular establishment on temporary basis existing vacancies, if suitable vacancies are not available necessary steps may be taker, by the respective authorities to create the requisite number of posts for the purpose of absorption of such categories of workers in consultation with the Fmar.ee Department. 4. 4. Not wiihstanding anything contained in the recruitment policy circulars issued by the State Government from time to time 5% of vacancies against the quota of 70% earmarked for recruitment through Employment Exchanges shall be kept reserved for absorption of those casual and such other categories of workers, who are already engaged in perennial type of work and have rendered at least 240 days service in a calendar year but have not completed three years service as yet. 5. While filling up vacancies in the regular establishments duly qualified seasonal workers who have worked for five years or more in successive seasons shall be considered for appointment by respective employing Authorities along with the candidates sponsored by Employment Exchanges. (a). The system of engaging contract labour for aparential type of work by certain State Government Establishments/Undertakings etc. shall be abolished in hases. For the purpose of gradual absorption of contract labour in the regular establishments of the Principal Employer necessary steps may be taken by the concerned Employing Authority. 6. Henceforth at the time of appointment of contractors of the terms and conditions shall be that initial recruitment to all categories of staff by the contractors shall invariably be through the Employment Exchanges. In respect of subsisting contracts, contractors may be persuaded to fill up vacancies under them by candidates sponsored through Employment Exchanges: The above measures will come into force with immediate effect. Continuation:-Unless there is anything repugnant in the subject or context casual and such other categories such workers would mean casual workers daily rated workers, Master-roll workers and such other categories of persons as may be specified from time to time by Government provisions contained in this Memorandum shall apply to all Departments. 6. In case of any doubt as to interpretation and/or implementation of the decisions contained in this Memorandum, the matter shall be referred to the Labour Department. Sd/- Chief Secretary." (4) Another circular letter No. 1650-EMP/EMP/3C-5/80 dated Calcutta, the 28th August, 1980 also has been relied upon which reads such. Government of West Bengal Labour Department No. 1650- Calcutta, EMP/3C-5/80 The 28th August, 1980. MEMORANDUM It has been represented to Government that retrenchment of casual and such other categories of workers already employed as such and engaged in perennial type of work has been resorted to in certain cases on the strength of Labour Deptt. Government of West Bengal Labour Department No. 1650- Calcutta, EMP/3C-5/80 The 28th August, 1980. MEMORANDUM It has been represented to Government that retrenchment of casual and such other categories of workers already employed as such and engaged in perennial type of work has been resorted to in certain cases on the strength of Labour Deptt. Memorandum No. 1700-EMP Dt.3-8-1979 (here in after referred to as the said G.O) This has never been the intention of Government. The object of the said G.O. was to provide for absorption in regular services of certain categories of casual workers who satisfied the prescribed norms. Doubts have also been raised in certain quarters about the true import of certain provisions made in the said G.O. Instructions contained in the said G.O. have accordingly been reviewed and Government have since taken the following further decision: (i) Retrenchment of casual workers already employed as such and engaged in perennial nature of job may not normally be resorte to, continuation or otherwise of the casual workers already in employment is a matter for the administrative Department agency to decide, keeping in view the nature and requirement of the job. (ii) Casual Workers who had already been in employment as on 3.9.79 and are still continuing as such will also be eligible for absorption in the regular establishments in the same manner as laid down in paragraph 3 of the said G.O. on completion of "more than 3 years service" as defined in the following paragraph, from the date of their initial appointment as casual workers. (iii) "Continuous period of more than three years" as contained in paragraph 3 of the said G.O. shall mean 240 days of work in each completed calendar year of service for three consecutive years. (iv) Not less than 120 days of work which may be continuous or not in a season stretching over a period of six months will qualify a worker to have worked for one season in a Calendar year. (iv) Not less than 120 days of work which may be continuous or not in a season stretching over a period of six months will qualify a worker to have worked for one season in a Calendar year. (v) "Duly qualified seasonal workers" referred to in paragraph 5 of the said G.O shall mean those seasonal workers who are still continuing as such and who possess the qualifications prescribed in the rules of recruitment for the post in which they will be considered for appointment in the regular establishment, subject to the condition that they are in employment at the material time for 5 (Five) Calendar year or more in consecutive seasons from the date of their initial appointments as seasonal workers. (vi) A particular job will be treated as perennial if such job is of a permanent nature. Sd/-Illegible. Secretary, Labour Department, Government of West Bengal." (5) Another circular letter No. 100-EMP dated 13th March, 1996 as aforesaid also has been relied upon. (6) All those circular letters provide that casual appointees who were appointed for certain period of time, would be regularised in service and at the same time backdoor appointment method of appointment has been invalidated by those circular letters. Already the recruitment rule is existing in the field long back before issuance of the circular letters in the year 1979 and giving a go-bye to that recruitment rule the State Government intended to regularise service of the casual appointees which is nothing but total breach of Article 14 and 16 of the Constitution of India. (7) In view of said concept, a question framed by the Court to answer as to whether the said circular letters could pass the acid test under constitutional provision of Article 14 and 16. The parties before us argued on that point at length. Said question was framed relying upon the view of Apex Court and the finding made in the case V.K. Majotra v. Union of India, reported in 2003(8) SCC 40 where the Court held that point not pleaded could be raised by writ Court subject to providing of opportunities to parties. Said view reiterated by Court in the case Som Mittal v. Government of Karnataka, reported in 2008(3) SCC 574 , judgment of 3 Judges Bench. Said view reiterated by Court in the case Som Mittal v. Government of Karnataka, reported in 2008(3) SCC 574 , judgment of 3 Judges Bench. This point is raised by Court as it appears that at different time for a span of long years, Govt, had taken this bypass system to breach the recruitment rule. (8) It is a settled legal position that the Government even in exercise of executive power under Article 162 of the Constitution of India, cannot regularise the service in breach of the recruitment rule framed under Article 309 of the Constitution of India which is in existence. Reliance is placed to the judgment passed in the case B.N. Nagarqjanv. State of Karnataka reported in AIR 1979 SC 1676 , a judgment of three Judges Bench. The observation made by the Apex Court in the said order is to this effect "if the rules framed under Article 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 in contravention of the rules. It has been further observed on considering the relevant rules of regularisation thereof to this effect "what could not be done under three sets of rules as they submitted, would those be achieved by the executive an such course is not permissible because act done in exercise of the power of the Government, as already stated, cannot override the rules framed under Article 309 of the Constitution of India." The same view has been reiterated by the Apex Court in the case A. Umarani v. Registrar, Co-operative Societies, reported in 2004(7) SCC 112 , a judgment of three Judges Bench. The Constitution Bench in the case Secretary, State of Karnataka v. Uma Devi (3), reported in 2006(4) SCC 1 on confirming the views expressed in the case B.N.Nagarqjan (supra) held that the appointees who have been appointed illegally without following the recruitment rules would not be entitled to be regularised in service, only exception made in paragraph 53 thereof in respect of "irregular appointment." (9) In the instant case, from the averments made by the petitioners, it appears that they were illegal appointees as no recruitment procedures were followed to appoint them initially when they were appointed as causal appointees. The view of Uma Devi (3) (supra) intended to be distinguished by 2 Judges Bench of the Apex Court in the case U. P. State Electricity Board v. Puran Chandra Pandey, reported in 2007(1) SCC 92 on a finding that as the appointee was working in the organisation for a long period, the Government action should be fair and reasonable and on relying upon case of Maneka Gandhiv. Union of India, reported in AIR 1978 SC 597 , a judgment of seven Judges Bench of the Apex Court, allowed regularisation of service. The views of Puran Chandra Pandey (supra) subsequent by came up for consideration to a Bench consisting of Judges in the case Official Liquidator v. Dayanand, reported in 2008(10) SCC 1 wherein in paragraph 9 the Court expressed a costic remark against the judgment passed in the case Puran Chandra Pandey by holding that the said view expressed by the Court was obiter dicta and no Court or Tribunal or any authority would follow that judgment as it was against the rule a settled by the judgment passed in the case Uma Devi (3) (supra) to this that regularisation of service where appointment has been made in contravention of the statutory rule, is nothing but breach of Article 14 an 16 of the Constitution of India. Said view expressed in paragraph 43 in the case UmaDebi (3) (supra) by the Apex Court. The said view relied upon by the Court the case Indian Drugs and Pharmaceuticals Limited reported 2006(12) Supple SCC 1; Principal Mehar Chand Polytechnic v. Anu Lamba, reported In 2006(7) SCC 161 ; Surendra Prasad Tewari v. U. P. Rajya Krishi UtpadanMandiParishad, reported in 2006(7) SCC 684 . In the case Mahadeo Bhan KhUare (Mane) and Ors. v. State of Maharastra, reported in 2007(5) SCC 524 the Apex Court held that appointments are void abinitio as are in utter breach of recruitment rule and/or Constitutional scheme of public employment under Article 14 and 16 of the Constitution of India and thereby appointments would be wholly illegal and no regularisation order could be passed by the Court. v. State of Maharastra, reported in 2007(5) SCC 524 the Apex Court held that appointments are void abinitio as are in utter breach of recruitment rule and/or Constitutional scheme of public employment under Article 14 and 16 of the Constitution of India and thereby appointments would be wholly illegal and no regularisation order could be passed by the Court. In Uma Debi (3) (supra) the Court held that Article 14 and 16 of the Constitution of India, is the basic feature of the Constitution and regularisation of service of illegal appointees, if is done, that would cause injury to the basic feature of the Constitution and thereby observed that High Court, being the sentinel and guardian of the Constitution should maintain the constitutional mandate properly and when such type of approach to be made for regularisation of service who are appointed illegally without following the recruitment procedures, the same should not be allowed as it would infringe equality clause under Article 14 of the Constitution of India. Andhra Pradesh S.R.T.C., a Corporation, issued a circular for regularisation of ad hoc, casual and daily rated workers. This matter came up before the Apex Court and when dealing with the issue, the Apex Court held that the circular letter of the Corporation for regularisation of service on ad hoc, casual and daily rated workers dehors to the Constitutional mandate and it breaches Article 16 and as such no regularisation was permissible. The Court quashed the order of regularisation as well as the circular letter issued by the SRTC for regularisation. Reliance is placed to the judgment passed in the case Accounts Officer, APSRTCv. K.V.Ramanaand Ors., reported in 2007(2) SCC 324 . Even recently the Apex Court has quashed the circular letter issued by the Railway Board relating to regularising the service of "permanent way mate" as Group C employee, promotional post of the Group D employee, by holding that regularisation is not a way for appointment. (10) Employment must be made in terms of the constitutional provision following which the recruitment procedure is framed for Government service. Compliance of Article 14 and 16 is mandatory and as already discussed that Article 14 and 16 is basic structure of the Constitution. (10) Employment must be made in terms of the constitutional provision following which the recruitment procedure is framed for Government service. Compliance of Article 14 and 16 is mandatory and as already discussed that Article 14 and 16 is basic structure of the Constitution. It has been held in the case Kesavananda Bharati v. State of Kerala, reported in 1973(4) SCC 225 that Article 14 and Article 16 which is a facet of Article 14, are part of the basic structure of the Constitution. The decision was summed up by Jeevan Reddy, J., speaking for the Bench, in the case Indira Sawhney v. Union of India, reported in 2000(1) SCC 168 by holding that neither Parliament nor legislature can transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16(1) is a facet. In earlier decision of the case Kuldip Singh v. State of Punjab, reported in 1992 (supple) (3) SCC 1, speaking for the majority while acknowledging the equality and equal opportunity as basic feature of our Constitution has explained the exultant position of Article 14 and 16 in the scheme of the Constitutional area deducing the logic there from a Constitutional Bench judgment passed in the Uma Devi (3) (supra) held that "adherence to rule of equality in public employment is the basic feature of our Constitution. So the Court is responsible to protect it and in breach/violation of Article 14 the Court will try to uphold the basic feature of the Constitution." In Uma Devi (3) (supra) the Apex Court has categorically observed "High Court should not pass any order of regularisation as other identically placed candidates would not be able to get any chance to appear and the order of regularisation would be nothing but a backdoor method." The duty of the High Court as sentinel and guardians of equal rights protection should not be forgotten also is the views expressed in the said judgment. (11) Considering those aspects and the legal principle, we are of the view that the circular letter of the Labour Department vide Memo No. 1700-E.M.P/ 3C-26/78 dated 3rd August, 1979/ 16.8.79, No.l650-E.M.P./EMP-3C-5/ 80 dated 28th August, 1980 and No. 100-E.M.P/9M/17 dated 13th March, 1996 all are on breach of Article 14 and 16 of the Constitution India an thereby resulting the "injury to the basic feature of the Constitution. As such, the Government is not legally entitled to regularise the service of any employee on taking recourse to those circular letters on breach of the equality clause of the Constitution. The circular letters practically have given a premium of backdoor appointment without following the recruitment procedures despite the fact that the recruitment rules in terms of Article 309 is already existing for appointment in the Government service and without caring that, at different point of time the Government appointed the casual appointees without feeling up the posts by permanent appointment following recruitment rule and thereafter the Government issued the circular letters for regularisation of service which should not be allowed to continue by us in view of our solemn duty in the language of the Apex Court, the sentinel and guardian of the Constitution. (12) Having regard to such, the regularisation order passed by the Tribunal and the absorption of the writ petitioners thereof, is set aside and quashed. (13) Regularisation circular letters, being No. 1700-EMP/30-26/78 dated the 3rd August, 1979/16.8.79, No. 1650-EMP/EMP/3C-5/80 dated the 28th August, 1980 and No. 100-E.M.P./9M/17 dated the 13th March, 1996, are hereby declared as ultra vires to the Constitution of India due to direct breach of Article 14 and 16 of the Constitution of India. The Government and the concerned all Govt. Departments would not be entitled to follow those circular letters for regularisation of service of any candidate in the Government service. Secretary of the Government of West Bengal, Irrigation and Waterways Department is restrained from regularising the service of any candidates, the list of which was forwarded to him by the letter dated 17.8.2007 issued by Director of Personnel and Ex-Officio Chief Engineer, I and W Directorate annexed at page 38 of the writ petition. (14) The writ application accordingly stands dismissed. (15) However, this order will not debar the petitioners if they are successful in any recruitment process if is initiated following the recruitment rule framed under Article 309 to have appointment prospectively in the service. (16) Let a copy of this judgment be served by High Court Registry to the Chief Secretary, Government of West Bengal for his communication to all the Departments the judgment of this Court and for giving direction not to follow the circular letters, as referred to above, for regularisation/absorption of any casual appointee and/or ad hoc appointee in any manner whatsoever. Xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned advocates appearing for the parties, on the usual undertaking. Writ application dismissed