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2011 DIGILAW 763 (CAL)

UNION OF INDIA v. Smti Sujatha Yadav

2011-06-10

JAYANTA KUMAR BISWAS, MRINAL KANTI CHAUDHURI

body2011
Judgment :- Jayanta Kumar Biswas, J. The Court: This appeal has been filed by the respondents in WP No.1173 of 2010 that was disposed of by the impugned decision dated January 13, 2011. The WP was filed by the respondent (Sujatha Yadav) under art.226 seeking the following principal and reliefs: “(a) A writ in the nature of mandamus by setting aside the impugned order of discharge vide order NO.403 dated 15.11.2006 (Annexure P/2) treating the same is null and void and discrimination in nature as compared to similarly situated persons (Annexure P/3). (b) A writ in the nature of mandamus by directing the respondent authorities to reinstate the petitioner forthwith and regularize the service of the writ petitioner from the date of her initial appointment w.e.f 07.08.1991 with all consequential benefits as extended to similarly situated persons vide regularization order No.298 dated 08.12.2009 (Annexure P/7) within a reasonable time, which had been done pursuant to the directions of Hon’ble High Court/Supreme Court.” The Single Bench disposing of the WP has held and directed the appellants as follows: “In view of the order of the Division Bench of the High Court as well as the Hon’ble Supreme Court, the respondent authorities are obliged to regularize the similarly placed persons and the writ petitioner is entitled to be regularized like others who have been discharged after completion of 50 years and, accordingly, I direct the respondent authorities to regularize the writ petitioner’s service by issuing a fresh order and if necessary by creating a supernumerary post as directed by the Hon’ble Division Bench of the High Court which have been affirmed by the Hon’ble Supreme Court being Annexure P-5 and P-6 of the writ petition. The respondent authorities are directed to issue the order for regularization of the writ petitioner within a period of six weeks from the date of communication of this order.” In exercise of powers conferred by cl.(1) of art.240 of the Constitution the President promulgated the Andaman and Nicobar Home Guards Regulation, 1964. The respondent authorities are directed to issue the order for regularization of the writ petitioner within a period of six weeks from the date of communication of this order.” In exercise of powers conferred by cl.(1) of art.240 of the Constitution the President promulgated the Andaman and Nicobar Home Guards Regulation, 1964. Section 3(1) of the Regulation provides that the Chief Commissioner shall constitute for each of the areas notified under sub-s. (3) of s.1 of the Regulation a volunteer body called the Home Guards, the members of which shall exercise such powers and perform such duties in relation to the protection of persons, the security of property and the public safety as may be assigned to them in accordance with the provisions of the Regulation and the rules made thereunder. Section 5 of the Regulation provides that a member of the Home Guards shall be required to serve the Government for such period as may be prescribed; that any such member may be discharged from the Home Guards at any time by such authority on such grounds and subject to the conditions as may be prescribed; that it shall not be necessary for such authority to disclose the grounds if such authority considers that such disclosure will be against the public interest; and that an order of discharge shall be final. In exercise of powers conferred by s.16 of the Andaman and Nicobar Islands Home Guards Regulation, 1964 the Chief Commissioner, Andaman and Nicobar Islands made the Andaman and Nicobar Islands Home Guards Rules, 1965. Rule 3 of the rules provides that no person shall be appointed as a member of the Home Guards unless he has attained the age of 18 years but has not completed the age of 50 years, and that the Commandant or the Area Commandant may, if suitable persons are available, relax the conditions. Rule 3 of the rules provides that no person shall be appointed as a member of the Home Guards unless he has attained the age of 18 years but has not completed the age of 50 years, and that the Commandant or the Area Commandant may, if suitable persons are available, relax the conditions. Rule 8 of the rules provides that the term of office of a member of the Home Guards shall be three years; that if any such member is found to be medically unfit to continue as a member of the Home Guards, his appointment may be terminated before the expiry of three years; that a person appointed shall be eligible for re-appointment; and that the services of a member of the Home Guards may be terminated at any time by the Area Commandant or the Commandant after giving him one month’s notice. Rule 9 of the rules provides that a member of the Home Guards may continue to be such member until he attains the age of 50 years; and that the Commandant or the Area Commandant may relax the age limit in suitable cases. No provision of the Regulation or the rules provides that a person appointed as a member of the Home Guards will acquire a right to appointment to any other post in the department concerned or in any other department on a permanent basis by way of regularization or absorption on the grounds that he has given services to the Government as a member of the Home Guards. Appointment of a person as a member of the Home Guards and termination of his services by discharge were always and still are to be regulated strictly by the Regulation and the rules. In 1999 one Parul Debnath & 37 Ors. moved OA No.122/AN/99 before the Central Administrative Tribunal, Calcutta Bench alleging that though by giving services as members of the Home Guards for long periods they became entitled to appointment by regularization or absorption to suitable posts in regular establishments on a permanent basis, the authorities did not give them the benefit. During pendency of the OA one Selva Raj & 52 Ors. filed OA No.28/AN/2002 before the Tribunal making the same allegations. During pendency of the OA one Selva Raj & 52 Ors. filed OA No.28/AN/2002 before the Tribunal making the same allegations. All these members of the Home Guards moving the Tribunal prayed for an order directing the authorities to appoint them to suitable posts on a permanent basis in regular establishments by way of regularization. By a common order dated September 16, 2002 the OAs were disposed of directing the authorities to frame a scheme for appointment of the applicants therein and the persons “like” them in regular establishments on a permanent basis by way of regularization. Feeling aggrieved, the respondents in the OAs moved WPCT Nos.73 & 158 of 2003 before this Court under art.226. By a decision dated December 16, 2003 this Court holding that the Tribunal had no jurisdiction to entertain the OAs and treating the WPCTs as original art.226 petitions filed before this Court disposed of them directing the authority to frame a scheme in terms of the direction of the Tribunal. Feeling aggrieved, the petitioners in the WPCTs filed a special leave petition to appeal. During pendency of the petition one Manoj Kumar Singh & 30 Ors. moved WP No.22 of 2004 before this Court under art.226 seeking a mandamus to appoint them on a permanent basis in regular establishments by way of regularization on the grounds that they had given services to the Government as members of the Home Guards. By a decision dated March 18, 2004 the WP was disposed of directing the authorities concerned to treat it as a representation and dispose of it by giving a reasoned decision. Feeling aggrieved, the respondents in the WP filed another petition for special leave to appeal before the Supreme Court. While the Supreme Court dismissed the petition for special leave to appeal against the decision dated March 18, 2004 in WP No.22 of 2004 by an order dated August 9, 2004, it dismissed the petition for special leave to appeal against the decision dated December 16, 2003 in WPCT Nos.73 & 158 of 2003 by another order dated August 30, 2004. Under the circumstances, the Andaman and Nicobar Administration framed a scheme called “Home Guards (Regularization/absorption/appointment) Scheme of Andaman and Nicobar Administration, 2005” and published it in the Official Gazette on April 05, 2005. Under the circumstances, the Andaman and Nicobar Administration framed a scheme called “Home Guards (Regularization/absorption/appointment) Scheme of Andaman and Nicobar Administration, 2005” and published it in the Official Gazette on April 05, 2005. The scheme, inter alia, provided as follows:- “(a) Henceforth, 20% of the vacancies occurring in the year (including existing vacancies) in all the posts in Group D under A&N Administration and in the post of Constable in Group C under the Andaman and Nicobar Police Department be earmarked for the Home Guards who are presently enrolled and have rendered atleast five years of continuous service or more and fulfilling the eligibility conditions including the educational qualification prescribed in the Recruitment Rules/ Andaman and Nicobar Police Manual, 1963.” Questioning the scheme Parul Debnath & 129 Ors, all members of the Home Guards, moved WP No.195 of 2005 before this Court under art.226. By a decision dated July 28, 2006 a Single Bench dismissed the WP. By a decision dated January 22, 2007 MAT No.25 of 2006 against the decision was allowed by a Division Bench The Division Bench quashing the scheme said as follows: “ 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.” Feeling aggrieved by the Division Bench decision dated January 22, 2007 the respondents in MAT No.25 of 2006 filed S.L.P (C) No.10496 of 2007 before the Supreme Court that granted leave to appeal and finally dismissed the appeal by a decision dated May 06, 2009. Under the circumstances, instead of framing a fresh scheme, the Administration took steps and issued orders for appointing the persons moving the Tribunal in 1999 and 2002 and the Writ Court in 2005 to posts in regular establishments on a permanent basis by way of regularization, Sujatha was appointed as a member of the Home Guards for a three-year term by an order dated August 07, 1991. Through a process of several discharges and re-appointments she continued to work as a member of the Home Guards till December 15, 2006 when, in terms of an order dated November 16, 2006, she was discharged on the grounds of attaining the age of 50. Sujatha, discharged from the roll in terms of the provisions of the Regulation and the rules and claiming that seeking re-appointment she submitted repeated representations to the authorities concerned, however, chose not to question the order dated November 16, 2006 until July 2010 when she brought the WP out of which this appeal has arisen. The Single Bench did not find any reason to interfere with the order. The Single Bench, however, held that in view of the Division Bench decision dated January 22, 2009 in MAT No.025 of 2006 and the Supreme Court decision dated May 06, 2009 in S.L.P (C) No.10496 of 2007, Sujatha was entitled to an appointment to a suitable post in regular establishment on a permanent basis by way of regularization. Accordingly, the Single Bench directed the appellants to appoint her on a permanent basis by way of regularization. On January 13, 2011 when the Single Bench decided Sujatha’s WP another Single Bench decision dated September 20, 2010 dismissing as many as seven WPs filed by a large number of members of the Home Guards in 2009 and 2010 seeking mandamus commanding the Administration to appoint them to posts in regular establishments on a permanent basis by way of regularization was in force, and three appeals against the decision were pending before the Division Bench. There is nothing to show that attention of the Single Bench was drawn to the binding Single Bench decision dated September 20, 2010. There is nothing to show that attention of the Single Bench was drawn to the binding Single Bench decision dated September 20, 2010. However, by a decision dated February 4, 2011 a Division Bench has since allowed the appeals holding and directing as follows:- “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 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.” Mr. Mandal appearing for the appellants has submitted as follows. Sujatha belatedly challenging the discharge order dated November 16, 2006 was not entitled to any relief. In any case, in the face of the Division Bench decision dated February 04, 2011, in terms whereof the Administration has been working out a suitable scheme, there is no question of appointing her to any post by way of regularization. As to re-appointment, Mr.Das appearing for Sujatha has submitted as follows. When the Regulation and the rules conferred powers on the authority to re-appoint a person discharged on attaining the age of 50 and many discharged former members of the Home Guards were re-appointed and Sujatha submitted one after another representations, the authority, guilty of inaction and non-action, is not entitled to take the plea of delay. As to regularization, his submissions are these. When a large number of members of the Home Guards have been appointed in regular establishments on a permanent basis by way of regularization, though no scheme was framed, Sujatha cannot be denied the benefit. According to him, the decision of the Division Bench dated February 04, 2011 given in ignorance of what was said in par.19 of the Supreme Court decision dated May 06, 2009 cannot be treated as a binding precedent, and, in any case, the appellants have not shown a single ground to interfere with the decision under appeal. According to him, the decision of the Division Bench dated February 04, 2011 given in ignorance of what was said in par.19 of the Supreme Court decision dated May 06, 2009 cannot be treated as a binding precedent, and, in any case, the appellants have not shown a single ground to interfere with the decision under appeal. The first question is whether Sujatha is entitled to invite us to examine the validity of the order dated November 16, 2006 whereby she was discharged with effect from December 15, 2006. Admittedly, the Single Bench did not find any reason to interfere with the order of discharge dated November 16, 2006 and Sujatha failing to get any relief against her discharge chose not to lodge any appeal or a cross-objection to this appeal. In this appeal the respondents in the WP have questioned the order directing them to appoint her on a permanent basis in regular establishment by way of regularization. We are, therefore, of the view that having accepted the decision of the Single Bench, Sujatha is not entitled to ask us to examine the validity of the discharge order. Even otherwise, we are of the view that there is no merit in Sujatha’s case that the authority issuing the order dated November 16, 2006 discharging her on the grounds of attaining the age of 50 was guilty of inaction or non-action. The order was passed as back as November 16, 2006 and in terms thereof she was discharged with effect from December 15, 2006. She submitted representation after accepting the order discharging her. She went on making representations for long four years and finally approached this Court only in July 2010. At this date, her right to consideration for re-appointment having become stale, she was not entitled to any relief from the Writ Court, essentially a Court of equity. Besides, she did not have a right to claim re-appointment. She only had a right to consideration for re-appointment. The fact that the authority to whom the representations were sent gave no attention to them is sufficient to conclude that her claim never merited any consideration. By not questioning the action, inaction and non-action and permitting long four years to pass from the date of discharge she, evidently, accepted the decision of the authority not to re-appoint her under r.9 of the rules. By not questioning the action, inaction and non-action and permitting long four years to pass from the date of discharge she, evidently, accepted the decision of the authority not to re-appoint her under r.9 of the rules. As to the question of her appointment to a suitable post in any regular establishment on a permanent basis by way of regularization, we are unable to see how Sujatha can claim a right to appointment or a right to consideration for appointment. No provision of law created her any right to consideration for appointment by way of regularization. The orders whereby the persons who moved the Tribunal in 1999 and 2002 and the Writ Court in 2005 were appointed in regular establishments on a permanent basis by way of regularization, were passed, evidently, in view of the orders of the Tribunal and Courts passed in the cases concerned. Those orders cannot be cited by her to claim a right to appointment or a right to consideration for appointment in a regular establishment on a permanent basis by way of regularization. Whether the orders appointing the persons concerned by way of regularization were issued lawfully is another matter. We only say that they could not and actually did not entitle Sujatha to claim a right to appointment or a right to consideration for appointment to any post in any regular establishment on a permanent basis by way of regularization or absorption. As noted hereinbefore, the Administration was required to frame a scheme and the position that exists today is that in view of the last Division Bench decision of this Court dated February 04, 2011 it is in the process of working out a scheme. Whether the scheme will entitle Sujatha to claim a right to consideration for appointment on a permanent basis by way of regularization is a matter of speculation today, and we do not find any reason to say anything regarding that. We only say that on the facts and in the circumstances, she has no enforceable legal right to claim a right to consideration for an appointment to any post in any regular establishment on a permanent basis by way of regularization. In our view, the Single Bench erred in directing the appellants to appoint Sujatha in some regular establishment on a permanent basis by way of regularization. In our view, the Single Bench erred in directing the appellants to appoint Sujatha in some regular establishment on a permanent basis by way of regularization. It is to be noted that nothing in the decisions of the Division Bench dated January 22, 2007 and the Supreme Court dated May 06, 2009 entitles Sujatha to claim an appointment to any post in any regular establishment on a permanent basis by way of regularization. For these reasons, we allow the appeal, set aside the impugned decision of the Single Bench and dismiss WP No.1173 of 2010. No costs. Certified xerox.