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2009 DIGILAW 924 (CAL)

Sukanta Hazra v. Visva Bharati University

2009-12-21

INDIRA BANERJEE

body2009
Judgment : INDIRA BANERJEE, J. (1.) On or about 1st January, 1998 advertisements were issued inviting applications for appointment in Group D posts In Visva Bharati University. (2.) Pursuant to the advertisement the petitioners applied. The petitioners were required to appear for a written test as well as for oral interview. On 1 st October, 2000, a panel of 199 selected candidates was prepared and published. (3.) The petitioners submitted that before publication of the panel, 43 candidates were appointed directly in complete departure from the settled procedure of recruitments, After publication of the panel of selected candidates on 1st October, 2000, the first 46 empanelled candidates were given appointment. (4.) On 15th September, 2001, the Karma Samiti of Visva Bharati University adopted a resolution for Oiling up Group D posts from amongst the workers, who had been granted temporary status and from the said panel of selected candidates in the ratio of 2:1. (5.) In 1993, Government of India had framed a scheme of regularization of casual labourers, known as "Casual Labourers (Grant of Temporary Status and Regularization) Scheme, 1993". (6.) The University Grants Commission decided to extend the scheme for regularization of casual labourers formulated by the Government to the casual employees of Central Universities including Visva Bharati University. (7.) The decision of the University Grants Commission was communicated to the Registrar, Visva Bharati University by Memo No. F6-2/97 (CU) dated 22nd April, 1998. (8.) The grant of temporary status was to be regulated by the said 1993 Scheme subject to inter alia the following conditions: "The Scheme "Casual Labourers (Grant of temporary Status and Regularization) scheme of Government of India 1993" apply to those casual labourers who were in employment on daily wage basis on jobs meant for Group D employees on the date of issue of the Government of India Office Memorandum i.e. 10.09.1993. The conferment of temporary status would be for those who are doing Job of occasional and intermittent in character and does not apply to all those person who have been engaged after 10th September, 1993. The Scheme does not apply also to any employee(s) engaged on casual wage basis on job(s) which is for the official of Group C posts. The conferment of temporary status would be for those who are doing Job of occasional and intermittent in character and does not apply to all those person who have been engaged after 10th September, 1993. The Scheme does not apply also to any employee(s) engaged on casual wage basis on job(s) which is for the official of Group C posts. The grant of temporary status to the casual labourers employed prior to 10.09.1993 will not confer on them any right to be equated with temporary Group D employee who are governed by different set of rules. The wages will be paid at daily rates with reference to the minimum of the pay scale for a corresponding regular D official including DA, HRA, CGA. All casual labourers getting conferment of temporary status under the scheme will be treated at par with temporary Group D employee w.e.f. the date they completed three years of service in newly acquired temporary status from that day onwards, they will be entitled to some of the benefits available to temporary Group D employees to the extent provided in rules/orders issued on the subject. It may be noted all the rules applicable to temporary Group D employees will not be applicable in their case. Whenever vacancies arises, the University should absorb the employees who have been granted temporary status." (9.) In terms of the Scheme as applied to Central Universities, temporary status was to be conferred on all casual employees who were in employment on the date of issue of the office Memo and who had rendered continued service for at least one year, which meant that they should have been engaged for a period of at least 240 days. (10.) This Scheme came into force with effect from 1st September, 1993. The Scheme provided that the cut off date for completion of 240 days would be 10th September, 1993. In other words, a person who completed 240 days on or before 10th September, 1993 would be entitled to be conferred temporary status, (11.) A writ application was filed challenging the scheme which led to the judgment of the Supreme Court in Union of India v. Mahinder Pal reported in AIR 2002 SC 201. In other words, a person who completed 240 days on or before 10th September, 1993 would be entitled to be conferred temporary status, (11.) A writ application was filed challenging the scheme which led to the judgment of the Supreme Court in Union of India v. Mahinder Pal reported in AIR 2002 SC 201. (12.) In Mahinder Pal (supra) the Supreme Court clarified that the scheme of 1st September, 1993 was not an ongoing scheme and temporary status could only be conferred on casual labourers fulfilling the condition incorporated in Clause 4 of the Scheme, that is, they should have been in continuous service for one year on the date of commencement of the scheme. (13.) The Scheme also provided that casual labourers, conferred temporary status, would not be brought on to the permanent establishment unless they were selected through regular selection process for Group D posts. (14.) Mr. H.K. Mitra, appearing on behalf of the petitioners submitted that 68 persons were given direct appointment without following the manner of recruitment and even persons who were engaged after 1993 were given permanent Jobs. (15.) A circular dated 21st February, 2004 was issued, for compassionate appointment against direct recruitment quota, upto a maximum of 5% vacancies. Sixteen candidates had been given appointment on compassionate ground. The petitioners submit that there are 435 vacancies and the, petitioners might be given appointment. (16.) Mr. Partha Basu, appearing on behalf of the respondent University, pointed out that only 5 casual labourers, engaged after 1993 had inadvertently been given appointment through a misconstruction of the relevant circulars. (17.) The said 5 persons not having been impleaded as parties to the writ petition, this Court does not deem it necessary to Interfere with their appointment. Mr. Basu submitted that no further casual employees engaged after 1993 shall be given appointment. (18.) According to the petitioners, not just 5 (five), but 119 appointments were illegal. Be that as it may, this Court Is not inclined to set aside the appointments already made, since the alleged illegal appointees have not been impleaded as parties. (19.) It is well established proposition that an empanelled candidate has no Inherent right to insist upon appointment. It is for the University, to choose when to fill up the vacancies. (20.) An empanelled candidate most certainly has a right to fair treatment and equality. (19.) It is well established proposition that an empanelled candidate has no Inherent right to insist upon appointment. It is for the University, to choose when to fill up the vacancies. (20.) An empanelled candidate most certainly has a right to fair treatment and equality. Illegal appointments can, in no circumstances, be made bye-passing a valid panel of selected candidates. (21.) The respondent University cannot make any appointment of casual employees engaged after 1993, in contravention of the Scheme and/or the relevant orders applicable to the University, Ignoring the claim of empanelled candidates to appointment. (22.) There could, however, be no bar in law to taking a decision to reserve vacancies for compassionate appointment. The compassionate appointments are not liable to be interfered with. (23.) The writ application is disposed of by directing the respondents to fill up Group D posts in Visva Bharati University by strict application of the 2:1 formula, that is, 2 casual employees engaged before implementation of the Scheme in 1994 and otherwise eligible for regularization in terms of the Scheme and 1 empanelled candidate. If there are no casual employees eligible for regularization. the Group D posts shall be filled up from the panel or by compassionate appointment. Compassionate appointments might not exceed the stipulated reserved quota of 5% of the general vacancies, for such appointments. Urgent photostat certified copy of this order, if applied for, be supplied to the parties, subject to compliance of all requisite formalities. Writ application disposed of.