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2011 DIGILAW 449 (CAL)

Mohan Kumar Das v. The Union of India

2011-03-29

DEBASISH KAR GUPTA, MD.ABDUL GHANI

body2011
JUDGMENT :- Debasish Kar Gupta, J. This appeal is directed against an order dated September 10, 2010 passed by the Central Administrative Tribunal, Calcutta Bench (Circuit at Port Blair) in OA No.146/A&N/2010. By virtue of impugned order, the learned Tribunal dismissed the above application of the petitioners. An employment notice was published in the Daily Telegrams dated November 09, 2006 by the respondent no.5 inviting application from the eligible candidates belonging to Scheduled Tribe, Other Backward Class of A&N Islands and General Category for filling up the post of Mazdoor in Baratang Forest Division. The petitioners participated in the above selection process amongst other eligible candidates. The daily rated mazdoors working in Baratang Forest Division also participated in the above selection process amongst other eligible candidates. A selection committee was prepared by the respondent authority on February 22, 2007. The above selection committee took trade test in the months of May and June 2007. The personal test was also taken in August, 2007. Thereafter, category-wise merit list of selected candidates for appointment to the post of Mazdoor in Baratang Forest Division was published on January 29, 2008. There was a direction upon the selected candidates in the above merit list to attend the Office of the respondent no.5 during the period from February 18, 2008 to February 29, 2008 for submitting their willingness. The petitioners expressed their willingness in writing in the office of the respondent no.5 on February 27, 2008. Though the willingness of the petitioners submitted in the office of respondent no.5 in writing was accepted, they were informed that the recruitment process had been kept in abeyance due to some administrative reasons. Being aggrieved by the decision of the respondent authority to keep the recruitment process under reference in abeyance, the petitioners filed an application bearing OA No. 146/A&N/2009 before the Central Administrative Tribunal, Calcutta Bench (Circuit at Port Blair). The above application was dismissed by the learned Tribunal by virtue of the impugned order. It is submitted on behalf of the petitioners that they were eligible candidates fulfilling the eligibility criteria mentioned in the advertisement dated November 09, 2006. They had been selected following the provisions of recruitment rules, but the above selection process was kept in abeyance at the stage of issuing appointment letters to the petitioners without mentioning any specific administrative reason. It is submitted on behalf of the petitioners that they were eligible candidates fulfilling the eligibility criteria mentioned in the advertisement dated November 09, 2006. They had been selected following the provisions of recruitment rules, but the above selection process was kept in abeyance at the stage of issuing appointment letters to the petitioners without mentioning any specific administrative reason. In absence of any specific administrative reason withholding of the appointment of the petitioners is arbitrary. It is further submitted by the learned counsel appearing on behalf of the petitioners that the respondent authority cannot enjoy any unqualified right to refuse appointment in arbitrary manner. Reliance is placed on behalf of the petitioners on the decision of East Coast Railway-vs-Mahadev Appa Rao reported in (2010) 7 SCC 678 in support of their above submission. The above submissions made on behalf of the petitioners are vividly opposed by the learned government pleader. It is submitted by him that the selection process under reference was not cancelled. It was kept in abeyance due to the pendency of a Special Leave Petition bearing No. SLP (C) No. 698 of 2007 before the Hon’ble Supreme Court, arising out of judgment dated July 25, 2006 delivered in the matter of Divisional Forest Officer, Baratang-vs-Baratang Forest Workers Union ( In Re: No. MAT No. 16 of 2006). It is also submitted by the learned government pleader that, on receipt of a communication dated February 13, 2008 from the learned advocate of Baratang Forest Workers Union and a communication dated February 18, 2008 from the Baratang Forest Workers Union, the selection process in question was kept in abeyance due to pendency of the above Special Leave Petition before the Hon’ble Supreme Court. It is further submitted by him that persons merely selected for as post do not thereby acquire a right to be appointed to such post. Reliance is placed on the decision of Vinodan.T-vs-University of Calicut reported in (2004) 4 SCC 726. We have heard the learned counsels appearing on behalf of both the parties at length and we have given anxious consideration to the facts and circumstances of this case. It is true that the persons merely selected for any post do not thereby acquire a right to be appointed to such post but it does not mean that the respondent authority has the licence of acting in an arbitrary manner. It is true that the persons merely selected for any post do not thereby acquire a right to be appointed to such post but it does not mean that the respondent authority has the licence of acting in an arbitrary manner. It is open for a court sitting in writ jurisdiction to examine the decision making process of the State to refuse an appointment. Reference may be made to the decision of a Constitution Bench of the Hon’ble Supreme Court in the matter of Shankarsan Dash –vs- Union of India reported in (1991) 3 SCC 47 and the relevant portion of the above decisions is quoted below:- “7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatendra Kumar v. State of Punjab.” Admittedly, the petitioners participated in the selection process initiated by the respondent authority. Therefore, the vacancies for the post of Mazdoor in Baratang Forest Division, Department of Environment and Forests, A&N Islands were in existence. It is not in dispute that the petitioners were selected following due process of law adhering to the provisions of the recruitment rules. Admittedly, no specific administrative reason was assigned in the notice dated February 25, 2008 for keeping the selection process under reference in abeyance. It is not in dispute that the petitioners were selected following due process of law adhering to the provisions of the recruitment rules. Admittedly, no specific administrative reason was assigned in the notice dated February 25, 2008 for keeping the selection process under reference in abeyance. However, it is disclosed in the affidavit-in-opposition filed on behalf of the respondents that due to pendency of Special Leave Petition bearing No. SLP(C) No. 698 of 2007 (In Re: Divisional Forest Officer –vs- Baratang Forest Workers Union) the selection process under reference was kept in abeyance. In order to examine the decision making process of the respondent authority in keeping the above selection process in abeyance, the issue involved in the above Special Leave Petition is to be taken into consideration. 136 daily rated mazdoor working under the respondent no.5 raised an Industrial dispute. The above industrial dispute was referred to the Industrial Tribunal, A&N Islands. The terms of preference of the above dispute were as follows:- “(i) Whether the demand of the General Secretary, Baratang forest Workers Union of regularization of the service of 136 daily rated mazdoors (Annexure –A) by the Divisional forest Officer, Baratang under “Casual Labourers (Grant of Temporary Status and regularization) of Government of India, 1993” is legal and justified? If so, what relief the concerned workmen are entitled to? (ii) whether the demand of the General Secretary, Baratang Forest Workers Union, Baratang for payment at the rate of 1/30th of pay at the minimum of the relevant pay scale plus dearness allowance to these 136 workers as per the office memorandum No. 49014/2/86 (Estt(c) dated 7.6.1988 of the Government of India, Ministry of Personnel, Public Grievances and Pension, New Delhi is legal and justified? If so, what relief the concerned workmen are entitled to?” Learned Industrial Tribunal passed an Award dated July 13, 2005 in connection with the above reference case bearing no. I.D. Case No.3 of 2002 that the first party, namely 136 daily rated mazdoors, were entitled to daily wage at the rate of 1/30th of pay at minimum of the relevant pay scale plus dearness allowance in terms of Government of India’s Office Memorandum No. 49014/2/86(Estt(C) dated June 07, 1988 from the date of their initial engagement till August 31, 1993 (as they had been conferred with temporary status on and from September 09, 1993). The learned Industrial Tribunal left the matter concerning regularization of the services of the aforesaid daily rated mazdoors open to be decided by the Administration with the observation that the administration should consider the same subject to availability of vacant posts in the Department and subject to their fulfilling the process of recruitment in accordance with the existing provisions of the recruitment rules and the general administrative instructions. The aforesaid 136 daily rated mazdoors did not challenge the above Award. The Administration filed an application under Article 226 of the Constitution of India bearing No. 176 of 2005 challenging the above Award dated July 13, 2005 passed in I.D Case No 2 of 2002. The above writ application was dismissed on March 13, 2006. The Administration preferred an appeal bearing MAT No.16 of 2006 against the aforesaid order of dismissal and the same was dismissed on July 25 of 2006. The administration filed the Special Leave Petition against the above order of dismissal of the appeal. The core issue involved in the above Special Leave Petition is stated in paragraph 4(n) of the affidavit-in-opposition filed on behalf of the respondent and the above statements are quoted below:- “(n) That the core of the issue which has to be decided by the Hon’ble Apex Court in the SLP is whether the workers are entitled to get the payment at the rate of 1/30th of pay at the minimum of the relevant pay scale plus dearness allowance as per the Office Memorandum No. 49014/2/86/Estt (C) dated 07/06/1988 of Government of India, Ministry of Personnel, Public Grievances and Pension, New Delhi.” Upon consideration of the issue involved in the Special Leave Petition under reference, we find that the right of 136 daily rated mazdoors to get payment at the rate of 1/30th of pay at the minimum of the relevant pay scale plus dearness allowance is the issue involved therein. The issue of regularization of the engagement of 136 daily rated mazdoors is not the issue involved in the above special leave petition, therefore the outcome of the above special leave petition has no bearing with the selection process under reference. The issue of regularization of the engagement of 136 daily rated mazdoors is not the issue involved in the above special leave petition, therefore the outcome of the above special leave petition has no bearing with the selection process under reference. Moreover, the issue of regularization of 136 daily rated mazdoors was left open by the learned Industrial Tribunal for consideration of the Administration with the observation that the Administration should consider the same subject to availability of the vacant posts in the department and subject to their fulfillment of the process of recruitment rules in accordance with the extant provisions of recruitment rules and the general administrative instructions. The first party, i.e. 136 daily rated mazdoors did not challenge the above merit, so the issue of their regularization reached its finality. The administration initiated the selection process under reference by issuing employment notice dated November 09, 2006. The aforesaid daily rated mazdoors participated in the above selection process. The attention of this Court is drawn towards the fact that the names of some of those daily rated mazdoors appeared in the merit list of selected candidates. Therefore the Special Leave Petition under reference has no nexus with the above issue. So, the action on the part of the respondent authority in keeping the selection process under reference in abeyance does not satisfy the test of reasonableness and the above action is arbitrary. In view of the discussions made hereinabove, the decision of Vinodan.T-vs-University of Calicut (supra) has no manner of application in this case on the basis of the distinguishable facts and circumstances of this case. This writ application is allowed by quashing and setting aside the impugned order dated September 10, 2010 passed in OA No. 146/A&N/2010. We further quash and set aside the decision of the respondent authority of keeping the recruitment process under reference in abeyance as reflected in the notice dated February 25, 2008 issued by the respondent no.5. This writ application is disposed of accordingly. There will be, however, no order as to costs.