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2010 DIGILAW 331 (CAL)

UNION OF INDIA v. Vinod N. C.

2010-03-29

J.K.BISWAS, RAGHUNATH RAY

body2010
JUDGMENT Jayanta Kumar Biswas, J. 1. THE petitioners in this Article 226 petition dated January 12, 2010 are aggrieved by an order of the Central Administrative Tribunal, Calcutta Bench (Circuit Bench at Port Blair) dated December 14, 2009, Annexure P9 at p.332, disposing of OA No.85/AN/2009 filed by the first to fourth respondents herein seeking regularisation of their services. The petitioners were the respondents in the OA. 2. AS will appear from Annexure P4 at pp.50, 62 and 73, the first to fourth respondents were appointed in Jawaharlal Nehru Rajkeeya Mahavidyalaya, Port Blair in the following manner: the first respondent, Vinod N.C., was appointed by an order dated October 7, 1999 as a part-time lecturer of computer application; the second respondent, Saida Banu, was appointed by an order dated December 1, 2000 as a part-time lecturer of tourism; the third and fourth respondents were appointed by an order dated July 25, 2001 as a lecturer of computer application, and a lecturer of commerce respectively on a contract basis. All the four continued in their respective jobs and on July 9, 2009 when the OA was filed they all were working in the college on a contract basis. At the date the OA was filed the recruitment rules according to which all appointments were to be made to all posts of lecturer in the college were: the Andaman and Nicobar Administration (Lecturer) in Jawaharlal Nehru Rajkeeya Mahavidyalaya, Port Blair and Mahatama Gandhi Government College, Mayabunder, Group 'A' (Non-Ministerial) post Recruitment Rules, 2007, Annexure P4 at p.96. 3. RELYING on an order No.3048 dated August 26, 1999, Annexure P4 at p.323, of the Andaman and Nicobar Administration appointing 17 persons named therein to the posts of lecturer in Jahawarlal Nehru Rajkeeya Mahavidyalaya on a regular basis, a circular order dated June 6, 2001, Annexure P4 at p.256, of the Andaman and Nicobar Administration stating the policy guidelines for grant of age relaxation benefit, a Division Bench decision of the Madras High Court dated November 28, 2006, Annexure P4 at p.220, an order of the tribunal dated October 21, 2009, Annexure P4 at p.325, in OA No. 111/AN/2009 - the first to fourth respondents filed the OA requesting the tribunal to make an order directing the petitioners to appoint them to the posts of lecturer in the college on a permanent basis by regularisation of their services. 4. 4. THE tribunal disposed of the OA directing as follows: "8.....the applicants will make comprehensive representing individually to the respondent authorities within a period of two weeks from today and on receipt of such representations the claims of the applicants shall be processed by the respondents by giving a sympathetic consideration in the matter of absorbing the applicants on regular service with the approval of the UPSC within a period of four months from the date of submission of representation. We make it clear that all provisions regarding relaxation of age shall be applicable in the case of the applicants. We further direct that till a decision is taken by the respondents in the matter, four posts in the respective disciplines as per notification will be kept unfilled and the applicants will not be disturbed from their present position." Mr. Mandal, counsel for the petitioners, relying on the constitution bench decision of the Supreme Court in Secretary, State of Karnataka and Ors. v. Umadevi and Ors., (2006)4 SCC 1 , has submitted that there was no scope for the tribunal to give the impugned directions; for the recruitment rules do not provide for any appointment to any post of lecturer in the college on a permanent basis by regularisation of service of a lecturer working on a contract basis. 5. MR. Das, counsel for the first to fourth respondents, has argued as follows. In view of the order of the administration dated August 26, 1999 regularizing the services of similarly situated persons, the orders made by the tribunal from time to time the decision of the Madras High Court, the decision of the Supreme Court in U.P. State Electricity Board v. Pooran Chandra Pandey and Ors., (2008) 1 SCC (Lands) 736, the decision of a Division Bench of this Court dated January 7, 2010 in WPCT No.001 of 2010 (Union of India and Ors. v. Dr. Rekha Kumari and Anr.), there is no reason to say that the tribunal committed any wrong by giving impugned directions. 6. THE question is whether the first to fourth respondents had an existing right to consideration for appointment to any post of lecturer in the college on a permanent basis by regularisation of their services therein on a contract basis. Rekha Kumari and Anr.), there is no reason to say that the tribunal committed any wrong by giving impugned directions. 6. THE question is whether the first to fourth respondents had an existing right to consideration for appointment to any post of lecturer in the college on a permanent basis by regularisation of their services therein on a contract basis. The recruitment rules do not provide for any appointment to any post of lecturer in the college on a permanent basis by regularisation of service of a person therein on a contract basis. Hence it cannot be said that one of the statutory methods of recruitment to the posts of lecturer in the college is appointment by regularisation. Under the recruitment rules an appointment to a post of lecturer is to be made only by direct recruitment. 7. WE are unable to see how the 1999 order of the administration appointing the persons named therein to the respective posts of lecturer on a regular basis and the orders of the tribunal directing the college to take steps for regularisation of services of persons working in the college in various capacities create a right of the first to fourth respondents to consideration for appointment. No amount of orders made by the tribunal can be a substitute for the lawful creation of a right to consideration for appointment to a post. An administrative order is not a binding precedent. The right, if any, could be created by the recruitment rules. 8. WE are unable to agree with the view taken by the Division Bench of the Madras High Court after considering the constitution bench decision in Umadevi. In our opinion, in the face of the constitution bench decision, no direction can be given by any Court or tribunal for making any appointment to any post de hors the recruitment rules. It is another matter that having served the college for a long period, the first to fourth respondents claim to have acquired a right to age relaxation benefit under the circular order of the administration dated June 6, 2001. We are not supposed to examine whether the order can still create any right in the face of the recruitment rules. It is another matter that having served the college for a long period, the first to fourth respondents claim to have acquired a right to age relaxation benefit under the circular order of the administration dated June 6, 2001. We are not supposed to examine whether the order can still create any right in the face of the recruitment rules. We only say that the question of grant of age relaxation benefit is not to be mixed up with the question of appointment to the posts of lecturer on a permanent basis by regularisation. The question is irrelevant because the first to fourth respondents have no right to consideration for appointment to the posts of lecturer on a permanent basis by regularisation of their services on a contract basis. 9. IN our view, in the absence of anything creating their right to consideration for appointment to the posts of lecturer on a permanent basis by regularisation, the first to fourth respondents could not allege a failure on the part of the college in the discharge of its duty or obligation to consider them for appointment by regularisation, and approach the tribunal seeking relief. By filing the OA they sought to enforce their non-existent right and non-existent obligaion of the college. Under the circumstances, in our opinion, the tribunal ought not to have given the impugned directions simply because it previously gave similar directions in other cases. 10. FOR these reasons, we allow the petition, set aside the impugned order and dismiss OA No.85/AN/2009. Needless to say that noting herein shall prevent the first to fourth respondents from applying in response to the employment notice inviting application for the posts of lecturer in the college and also from claiming age relaxation benefit according to law. We also say that while the first to fourth respondents will be free to work in the college so long as they wish, the college will be free to keep them in employment in accordance with law. No costs. Urgent certified xerox according to law. Petition allowed.