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2011 DIGILAW 440 (CAL)

Awadhesh v. UNION OF INDIA

2011-03-25

DEBASISH KAR GUPTA, MD.ABDUL GHANI

body2011
JUDGMENT Mukherjee, J. 1. THIS writ application is directed against an order dated February 10, 2010 passed by the Central Administrative Tribunal, Calcutta Bench (Circuit at Port Blair) in O.A. NO.187/AN/2008. By virtue of the impugned order, the learned Tribunal rejected the prayer of the petitioner to regularize his service as a Primary School Teacher from the date of his initial engagement. 2. THE petitioner was engaged as Primary School Teacher against a leave vacancy for the period from October 21, 1983 to December 21, 1983. By a subsequent order, he was engaged for a period from February 07, 1984 to April 20, 1984. Thereafter, he got another engagement on adhoc basis for the period from August 09, 1984 to April 30, 1985. Thereafter, the petitioner was engaged purely on temporary basis as Primary School Teacher against the post of Graduate Trained Teacher for the period from January 21, 1986 to May 15, 1986. Subsequently, the petitioner was engaged as a Supervisor under the scheme of adult education purely on temporary basis and on a consolidated pay for the periods from June 01, 1988 to August 16, 1990 and from August 17, 1990 to December 31, 1991. The petitioner was engaged as Assistant Project Officer under the aforesaid scheme of adult education purely on temporary basis and on consolidated pay on and from January 01, 1992. 3. THE petitioner submitted a representation dated February 25, 1999 for regularization of his above engagements. Thereafter, the petitioner filed an application bearing O.A. No.109/AN/1999 before the Central Administrative Tribunal, Calcutta Bench (Circuit at Port Blair) for regularization of his service as Primary School Teacher. THE above application was disposed of by an order dated October 11, 1999 directing the respondent authority to treat the above application as representation of the petitioner and to dispose of the same by passing a reasoned order. THE respondent authority by an order dated June 21, 2000 dismissed the claim of the petitioner. 4. THE petitioner thereafter, filed an application bearing O.A. No. 60/AN/2000 before the Central Administrative Tribunal, Calcutta Bench (Circuit at Port Blair) challenging the aforesaid order dated June 21, 2000. THE respondent authority by an order dated June 21, 2000 dismissed the claim of the petitioner. 4. THE petitioner thereafter, filed an application bearing O.A. No. 60/AN/2000 before the Central Administrative Tribunal, Calcutta Bench (Circuit at Port Blair) challenging the aforesaid order dated June 21, 2000. THE above application was disposed of by the learned Tribunal by an order dated January 31, 2002, directing the respondent authority to consider the case of the petitioner for appointment in the post in accordance with rules keeping in view the length of service rendered by the petitioner in the Education Department with effect from October 21, 1983. In compliance of the above order, the respondent authority referred the matter to the Departmental Selection Committee for consideration of the candidature of the petitioner in accordance with the recruitment rules. On recommendation of the Selection Committee, the respondent authority passed an Order No. 1189 dated March 04, 2002, appointing the petitioner to the Group 'C post of Primary School Teacher on a basic pay of Rs.4,500/- per month in the pay scale of Rs.4,500-7000 plus usual allowances. The petitioner again filed an application bearing O.A. No. 148/ AN/2007 before the Central Administrative Tribunal, Calcutta Bench (Circuit at Port Blair) challenging the aforesaid Order No.1189 dated March 04, 2002 for regularization of his engagement in the post of Primary School Teacher with effect from the date of his initial engagement. The above application was disposed of by the learned Tribunal by an order dated October 11, 2007 with direction upon the respondent authority to consider the case of the petitioner for regularization of his service with retrospective effect in accordance with rules and instructions after giving opportunity of hearing to him. The petitioner submitted a representation dated January 09, 2008 to the respondent authority for regularization of his service from his initial date of his appointment. The respondent authority rejected the claim of the petitioner by virtue of Order No. 2542 dated May 14, 2008. 5. THE petitioner again filed an application before the Central Administrative Tribunal, Calcutta Bench (Circuit at Port Blair) bearing O.A. No. 187/AN/2008 challenging the aforesaid order. By virtue of the impugned order dated February 10, 2010, the learned Tribunal rejected the above application of the petitioner. 6. 5. THE petitioner again filed an application before the Central Administrative Tribunal, Calcutta Bench (Circuit at Port Blair) bearing O.A. No. 187/AN/2008 challenging the aforesaid order. By virtue of the impugned order dated February 10, 2010, the learned Tribunal rejected the above application of the petitioner. 6. IT is submitted on behalf of the petitioner that the learned Tribunal did not consider the fact of regularization of engagements of other similarly circumstanced temporary appointees. Attention of this Court is drawn towards Order No. 3175 dated July 08, 2005 (Annexure-P-3 at page 128 of the writ application) in support of his above submission. IT is submitted on behalf of the petitioner that two similarly circumstanced persons, namely Shri Anil Kumar Jha and Shri Ganesh Shanker Singh were treated favourably by the respondent authority. IT is further submitted on behalf of the petitioner that due to the above discrimination, the decision of the respondent authority is violative of the provisions under Articles 14 and 16 of the Constitution of India. According to him, the petitioner will not be entitled to get pension due to such discrimination. Reliance is placed on behalf of the petitioner on the decisions of Maharaj Krishan Bhatt v. State of J and K, reported in 2008 (2) SCC (Lands) 783 and Rudra Kumar Sain v. Union of India, reported in 2000 (8) SCC 25 in support of his above submissions. 7. ON the other hand, the above submissions are vividly opposed by the learned Government pleader. It is submitted by him that the petitioner was initially engaged in the post of Primary School Teacher against on leave vacancy for a period from October 21, 1983 to December 21, 1983. The procedure prescribed in the recruitment rules for appointment of Primary School Teacher was not followed for the above engagement of the petitioner. The petitioner was further engaged for subsequent periods purely on temporary basis. Therefore, he had no legally enforceable right in his favour for regularization of his engagement. Subsequently, the learned Tribunal directed the respondent authority by an order dated January 31, 2002 passed in O.A. No. 60/AN/2000 to consider the case of the petitioner in accordance with rules, keeping in view of the length of service rendered by him in the Education Department. Consequent thereupon the case of the petitioner was placed before the Departmental Selection Committee for consideration in accordance with the recruitment rules. Consequent thereupon the case of the petitioner was placed before the Departmental Selection Committee for consideration in accordance with the recruitment rules. The above Committee recommended the case of the petitioner for appointment in the Group 'C' post of Primary School Teacher. ON the basis of the above recommendation of the Departmental Selection Committee, a fresh appointment was given to the petitioner. It is also submitted by him that by the Order No.3175 dated July 08, 2005, appointments were given to .33 persons who had participated in a selection process in the year 1992. The name of those persons were recommended by a Selection Committee. They also obtained an order dated February 13, 2001 in O.A. Nos. 29/AN/1994 and O.A. No.05/AN/1999 in their favour. 8. WE have heard learned Counsels appearing for respective parties at length and we have considered the facts and circumstances of this case on the basis of the materials-on-record. Admittedly, the initial engagement of the petitioner to the post of Primary School Teacher with effect from October 21, 1983 was against on leave vacancy. No material is brought on record to show that the above engagement of the petitioner was an outcome of his participation in a selection process held in accordance with the Recruitment Rules in vogue. His subsequent engagements were also not given after his selection in accordance with the Recruitment Rules. All these appointments were temporary and on consolidated pay. The principles of law relating to temporary, adhoc, casual appointments has been settled by a Constitution Bench in the matter of Secy., State of Karnataka v. Umadevi (3), reported in 2006 (4) SCC 1 and the relevant portions of the above decision are quoted below:- "52. Normally, what is sought for by such temporary employees when they approach the Court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) v. Governing Body of the Nalanda College. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) v. Governing Body of the Nalanda College. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent." (Emphasis supplied) 9. IT is evident from the materials-on-record that the learned Tribunal passed an order dated January 31, 2002, in connection with an application filed by the petitioner bearing O.A. No. 60/AN/2000 directing the respondent authority to consider the case of the petitioner in accordance with rules, keeping in view the length of service rendered by him in the Education Department. Consequent thereupon the case of the petitioner was placed before the Departmental Selection Committee in accordance with the recruitment rules. The Selection Committee recommended the case of the petitioner in its meeting dated February 28, 2002 for appointment to Group 'C' post of Primary School Teacher. The respondent authority accepted the above recommendation of the Departmental Selection Committee and passed an Order No. 1189 dated March 04, 2002, appointing the petitioner to the Group 'C post of Primary School Teacher. IT was an outcome of the recommendation made by the Selection Committee. The same cannot be described as regularization of the previous engagements of the petitioner. Considering the above facts of this case and on the basis of the settled principles of law as discussed hereinabove, we do not find any impropriety in the impugned order of the learned Tribunal in rejecting the prayer of the petitioner to regularize his engagement with effect from the date of his initial appointment. 10. AFTER considering the materials-on-record, we find that by an Order No. 3175 dated July 08, 2005, appointments were given to 33 persons with effect from July 12, 1993. 10. AFTER considering the materials-on-record, we find that by an Order No. 3175 dated July 08, 2005, appointments were given to 33 persons with effect from July 12, 1993. We find substance in the submission made by the learned Government pleader that the aforesaid persons had been selected in the year 1992 adhering to the provisions of Recruitment Rules and their names were recommended by a Selection Committee (Annexure-R-4 at page 39 of the supplementary affidavit to the affidavit-in-opposition). We further find that the aforesaid persons also obtained an order dated January 19, 2000 in O.A. No. 29/AN/1994 and O.A. No. 05/AN/1999 in their favour on the basis of the facts and circumstances involved in those cases. We further find no substance in the submissions made on behalf of the petitioner that the similarly circumstanced persons namely Shri Anil Kumar Jha and Shri Ganesh Shanker Singh were treated favourably by the respondent authority. It is evident from the materials-on-record that they were initially appointed to the post of Primary School Teachers against the post of Graduate Trained Teacher by invoking the provisions of Paragraph 77 of GFR (Revised and Enlarge) 1963 to teach mathematics in middle and secondary classes. 11. WE do not find that the decision of Maharaj Krishan Bhatt (supra) is applicable in this case in view of the distinguishable facts and circumstances. In the above case, there was an order in favour of the appellants passed by a Single Bench of the High Court of Jammu and Kashmir. It was passed considering the distinguishable facts and circumstances of that case. No appeal was preferred against the above order and the Hon'ble Supreme Court held that the same had reached its finality. The decision of Rudra Kumar Sain does not help the petitioner in any way. The above judgment was delivered on August 22, 2000 by a Constitution Bench of the Hon'ble Supreme Court of India. Subsequently, another Constitution Bench of Hon'ble Supreme Court consisting of equal number of Hon'ble Judges delivered the judgment of Umadevi (3) (supra) on April 10, 2006, taking a different views altogether. Therefore, taking into consideration of the latter decision, no relief can be granted to the petitioner. 12. Subsequently, another Constitution Bench of Hon'ble Supreme Court consisting of equal number of Hon'ble Judges delivered the judgment of Umadevi (3) (supra) on April 10, 2006, taking a different views altogether. Therefore, taking into consideration of the latter decision, no relief can be granted to the petitioner. 12. IN view of the observations and discussions made hereinabove, we do not find any impropriety in the decision making process of the learned Tribunal in passing the impugned order dated February 10, 2010 in O.A. No. 187/AN/2008. This writ application is, thus, dismissed. There will be, however, no order as to costs. 13. URGENT photostat certified copy of this judgment, if applied for, be supplied to the parties on usual undertakings.