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2011 DIGILAW 160 (CAL)

Mohammed Yousuf v. The Union of India

2011-02-04

SANJIB BANERJEE, SOUMITRA PAL

body2011
JUDGMENT :- Soumitra Pal, J. These appeals are against the judgment dated 20th September, 2010 passed by the learned Single Judge whereby the prayer for regularization and/or absorption of the appellants / writ petitioners, who were appointed as Home Guards was rejected principally on the ground that the learned Single Judge failed to appreciate that the impugned order No.298 dated 8th December, 2009 issued by the respondent authority regularizing the appointments of 325 Home Guards by creating supernumerary posts was made without framing a Scheme as directed in the judgment passed in MAT No.025 of 2006 (Smt. Parul Debnath & Ors. Vs. Union of India & Ors.) which was upheld by the Supreme Court. In order to decide the issue it is necessary to refer to the factual background of the matter. The appellants claim to be members of the Home Guards, the constitution of which is regulated by the A & N Islands Home Guards Regulation, 1964 (for short the Regulation). As per the said Regulation, such organization would have the characteristic of a voluntary body. The members of such body exercise such powers and such duties in relation to the protection of person’s security and property and public safety as may be assigned to them in terms of the provisions of the said Regulation and the A & N Islands Home Guards Rules, 1965 (hereinafter referred to as the Rules). Significantly under Clause 8 of the Rules, the term of office of a member of the organization is to be three years. Provision has also been made for re-appointment. It appears that the appellants were appointed on various dates between 2006 to 2010 in pursuance of several orders issued under Rule 4(1) of the Regulation. It has been stated some of the appellants are still in service while some have been discharged. The appellants herein seek regularization of their service on the strength of a judgment of the Hon’ble Division Bench of this Court delivered on 22nd January, 2007 in MAT No.025 of 2006 (Parul Debnath & Ors. Vs. Union of India), In this context, it is appropriate to mention that earlier members of the organization had filed two applications before the Central Administrative Tribunal being O.A. No.122/AN/1999 and O.A. No. 28/AN/2002 seeking regularization of their services on the ground that they had rendered service for a long period, in some cases without break. Vs. Union of India), In this context, it is appropriate to mention that earlier members of the organization had filed two applications before the Central Administrative Tribunal being O.A. No.122/AN/1999 and O.A. No. 28/AN/2002 seeking regularization of their services on the ground that they had rendered service for a long period, in some cases without break. The said two applications were disposed of by the Tribunal by a common order delivered on 16th September, 2002 with the following directions:- “(1) The respondents and in particular, Respondent No.1 shall consider framing an appropriate Scheme in consultation with the A&N Islands Administration for absorption/regularization/appointment of persons like the applicants who have been working as Home Guards for a number of years and for connected matters. They shall also keep in view the observations made in paragraph 7 above while framing the Scheme to suit local conditions, keeping in view the particular facts and circumstances of these cases. (2) The above action shall be taken by the respondents within six months from the date of receipt of a copy of this order.” Aggrieved by the said order, the Administration filed two writ petitions being WPCT No.73 of 2003 and WPCT No.158 of 2003 which were, on 16th December, 2003, disposed of by passing the following directions: “Having regard to the fact that the Home Guards are being employed and are compelled to perform the duties of regular employees, we feel that the decision of the learned Tribunal is justified. We, therefore, are not inclined to interfere with the decision of the learned Tribunal. The appropriate authority shall frame a Scheme as directed by the learned Tribunal. If necessary, by issuing an appropriate Notification for the purposes mentioned in the order appealed against. When the Scheme is to be formulated, the appropriate authority shall take into consideration the principles laid down in the decision the Pantha Chatterjee (supra). The time mentioned in the order of the learned Tribunal shall be the time counted from the date the copy of this order and the copy of the order of the learned Tribunal is furnished to the appropriate authority.” Pursuant to the directions, on 5th April, 2005 a Scheme titled as ‘Home Guards (Regularization/absorption/appointment) of the A & N Administration, 2005’ was framed. However, by filing a writ petition, the validity of the said Scheme was challenged particularly on the ground that it was not framed by the Administration in conformity with the order dated 16th December, 2003 passed by the Division Bench. However, the said writ petition was dismissed. Aggrieved, an appeal being MAT No.025 of 2006 was preferred. The Division Bench, on 22nd January, 2007, while allowing the writ petition by setting aside the order passed by the learned Single Judge, directed as under:- “Under such circumstances, this Court is unable to hold that the impugned Scheme was framed in conformity with the direction of the earlier Division Bench of this Court. The impugned Scheme thus stands quashed. The concerned authority is directed to frame the Scheme strictly in conformity with the decision passed by the Division Bench on 16th December, 2003 in the earlier writ petition being WPCT No.73 of 2003 which was disposed of analogously with WPCT No.158 of 2003, positively within three months from date. Before parting with, we make it clear that we do not find any unreasonableness in the eligibility criteria which has been introduced in the said Scheme for absorption of the petitioner. … … As, such the official respondents are required to find out the ways and means as to how the eligible petitioners and the other similarly placed persons can be absorbed on regularization of their service at a time. If however it is found that all the persons cannot be accommodated at a time in different establishments of the Administration, then the concerned respondent is required to create supernumerary posts so that the eligible petitioners can be accommodated in suitable posts at a time subject to satisfaction of the eligibility criteria. Such posts, however, may be abolished on retirement and/or termination of the service of the petitioners.” The Administration being aggrieved by the said order dated 22nd January, 2007 preferred an appeal arising out of SLP(C) No.10496 of 2007 which on 6th May, 2009 was dismissed. In this context, it is appropriate to refer to some of the observations made by the Apex Court which are as under:- “22. In this context, it is appropriate to refer to some of the observations made by the Apex Court which are as under:- “22. … … … … A glance at the Scheme framed makes it very clear that the same had not been framed in terms of the directions given by the Division Bench and also this Court and certainly not in keeping with the decision in Pantha Chatterjee’s case(supra). As has been very rightly pointed out in the judgment under appeal, it was the intention, both of the Tribunal and the High Court, as well as this Court, that the respondent Home Guards were to be absorbed in the regular establishment of the Andaman & Nicobar Islands and no new appointment was required to be made. …. … … … …In our view, the Division Bench has very correctly observed that the intention of the Tribunal and the courts was that the benefits to be given to the writ petitioners (respondents herein) should be extended to all of them uniformly and without making any discrimination. The very fact that some of the respondents would be regularized, while the others would have to wait till the next vacancies arose or the possibility that some of the candidates who were otherwise eligible, might not even be absorbed, was never the intentions when the directions were given to frame a Scheme for absorption of the respondents. In our view, such a course of action appears to have been adopted to negate the effect of the earlier orders so that the respondents as a whole were deprived of the benefit of absorption and the further benefit of ‘equal pay for equal work’ as was indicated in Pantha Chatterjee’s case (supra).” Thereafter, in compliance with the directions passed by the Apex Court and in MAT 025 of 2006 by the Division Bench, the Administration issued the order No.298 dated 8th December, 2009 regularizing 123 writ petitioners along with 202 non petitioners by creating supernumerary posts. The said order no.298 was challenged by filing several writ petitions which were dismissed by judgment dated 20th September, 2010 which, as already noted, is the subject matter in the instant appeals. Learned advocate for the appellants submitted that though a Scheme for regularizing the members of the Home Guards was directed to be framed however impugned order of appointment was passed. Hence, directions given was given a go-by. Learned advocate for the appellants submitted that though a Scheme for regularizing the members of the Home Guards was directed to be framed however impugned order of appointment was passed. Hence, directions given was given a go-by. Submission was direction may be passed to frame a Scheme for regularization on the basis of the judgment in Pantha Chatterjee as directed by the Apex Court without disturbing the appointments already made pursuant to the impugned order no.298. Learned advocate for the Administration in support of the impugned judgment submitted that the Home Guard Organization is a voluntary organization governed by the Regulation wherein parameters have been framed for appointment as well as for re-appointment. Submission was the case of the appellants stands on a separate footing as under the Regulation they were appointed for a period of three years and after a break they were reappointed in accordance with the Regulations, whereas pursuant to the impugned order No.298 persons who have been regularized had continued to serve, in some cases for more than ten years at a stretch. Since eligibility criteria have been upheld by the Division Bench, the Administration had issued the order under challenge to give appointments at a time to all similarly circumstanced persons. Moreover, in view of the judgments in the State of West Bengal versus Jiban Krishna Das: (2002) 4 SCC 721 and in the State of Manipur versus Ksh. Moirangninthou Singh: (2007) 10 SCC 544 , the members of the force are not entitled to get permanency. Further there is little or no scope for further regularization by creating supernumerary post as the strength of Home Guards in the Islands is 750. The question to be considered is whether the impugned order No.298 directing regularization of 325 Home Guards in supernumerary posts was pursuant to a Scheme. Admittedly, as noted, the Central Administrative Tribunal, the Division Bench of the High Court and the Apex Court had in no uncertain terms directed preparation of a Scheme for regularization of the services of the members of the Home Guards. ‘Scheme’ means ‘a systematic plan or an arrangement’. Therefore, as directed a Scheme containing the criteria for regularization would have preceded the impugned order directing regularization. ‘Scheme’ means ‘a systematic plan or an arrangement’. Therefore, as directed a Scheme containing the criteria for regularization would have preceded the impugned order directing regularization. Since by judgment dated 22nd January, 2007 passed in MAT 025 of 2006, the Scheme framed on 5th April, 2005 was quashed and the said judgment got merged with the order passed on 6th May, 2009 in Civil Appeal arising out of SLP(C) No.10496 of 2007 by the Supreme Court, it was incumbent upon the Administration to frame a Scheme afresh. Thereafter the Administration should have proceeded to regularize the appointments in the light of the Scheme. Passing the impugned order no.298 directing regularization sans the Scheme is contrary to the directions of the Division Bench in MAT 026 of 2006 since approved by the Apex Court. In short by issuing the impugned order no.298, judicial mandate has been ignored as preparation of a Scheme has been given a go-by. The judgments in the State of West Bengal versus Jiban Krishna Das (supra) and in the State of Manipur versus Ksh. Moirangninthou Singh (supra) relied on by the Administration do not support the case of the authority on facts, as the direction for framing a Scheme for regularization, as noted in this judgment, was upheld by the Apex Court. Hence, as the impugned order No.298 dated 8th December, 2009 directing regularization was not pursuant to a Scheme, the judgment under appeal cannot be sustained. Thus, appeals are allowed. We, therefore, direct the respondents to frame a Scheme by issuing appropriate notification within six months from the date of communication of this order for regularization of the services of the Home Guards in accordance with the judgments of High Court in MAT 025 of 2006 and by the Apex Court in Civil Appeal arising out of SLP(C) No.10496 of 2007. We, however, make it clear that appointments given pursuant to the order No.298 of 8th December, 2009 shall not be disturbed. No order as to costs.