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2013 DIGILAW 641 (CAL)

R. Somasekaran Pillai v. UNION OF INDIA

2013-09-05

MRINAL KANTI SINHA, TAPEN SEN

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JUDGMENT Tapen Sen, J. This writ petition is directed against the order dated 22nd August, 2012 passed by the learned Central Administrative Tribunal, Calcutta Bench, Circuit at Port Blair, in OA No. 101/AN/2010, whereby and whereunder it was pleased to hold that the law is well settled that a Court/Tribunal cannot issue a direction for regularization of a person who did not satisfy the requirements prescribed under the Rules. It further came to the conclusion that since the petitioner’s appointment as a Chargeman/Junior Engineer was contractual in nature, therefore, no positive direction can be given or issued for his regularization, as it was not a mode of recruitment. Consequently, the application before the Tribunal stood dismissed. The petitioner has further prayed that the respondent No.4 ( the Director, Directorate of Transport, Andaman and Nicobar Administration, Port Blair) be directed to regularize his service on the post of Chargeman/Junior Engineer since the date of his initial appointment vide office order No.971 dated 5th July, 2006 and thereafter release all consequential benefits to him. The short facts which are necessary to be taken into consideration are as follows: On 21st April, 1994, the respondent No.5 [the Assistant Director (Admn.), Directorate of Transport] engaged the petitioner as a daily rated mazdoor at Mayabunder Division along with five other candidates. The said engagement which was made by office order No.191 dated 21st January, 1994 (Annexure P-1 of the writ petition) continued till 2nd July, 2001. Subsequently, by an office order No.1394 dated 2nd July, 2001, his services were discontinued with immediate effect. Being aggrieved, the petitioner along with 30 other daily rated mazdoors moved the Presiding Officer, Labour Court and by an Award dated 30th June, 2004 passed in I.D (LC) Case No.1 of 2002, the question as to “whether the termination of services of 31 daily rated mazdoors (as per annexure-A) w.e.f. 2.7.2001 by the Director of Transport, Port Blair vide Order No.1394 dated 2.7.2001 is legal and justified? If not, what relief the concerned workmen represented by the General Secretary, State Transport Workers Union, Port Blair are entitled to.”, was answered by holding that the action of the Director of Transport in terminating the services of 31 daily rated mazdoors w.e.f. 2nd July, 2001 was not justified. The order No.1394 dated 2nd July, 2001 was accordingly quashed. If not, what relief the concerned workmen represented by the General Secretary, State Transport Workers Union, Port Blair are entitled to.”, was answered by holding that the action of the Director of Transport in terminating the services of 31 daily rated mazdoors w.e.f. 2nd July, 2001 was not justified. The order No.1394 dated 2nd July, 2001 was accordingly quashed. It was held that the workmen were entitled to be reinstated into service with immediate effect, but considering the fact that they were daily rated employees, they were not given the benefit of any backwages and other monetary benefits, but, it was, ordered that they should be deemed to be in continuous service, as if there was no termination. From one of the representations that this petitioner filed before the Lieutenant Governor and which was received by his Secretariat on 28.06.2004 (page 65 of the writ petition, it appears that he had informed that he was a highly skilled status mazdoor having been appointed in 1994. He had also stated that in the year 1997, the post of Junior Engineer had fallen vacant and that there had been an advertisement for filling up the said vacancy and he had applied for the said post, but no steps had been taken to initiate the process of selection. On 13.01.1999, the Director of Transport had recommended his case after mentioning that he had worked for a period of five years sincerely and a reasonable decision should be taken for filling up the post of Junior Engineer by appointing him on that post. He has also stated that he was working all along and discharging his duties both as a Chargeman and Junior Engineer. In yet another representation sent to the Director, Directorate of Transport (page 68 of the writ petition) he had mentioned the fact that he was a Diploma Holder in Automobile Engineering. It appears that after the publication of the Award dated 30.06.2004, two advertisements were published in a local newspaper, The Daily Telegrams. The first was published on 24.06.2005 (page 71 of the writ petition) wherein local candidates possessing local certificates and registered under the local Employment Exchange and having required qualifications were given the opportunity to appear at a ‘Walk-in-Interview’ on 29.06.2005 for selection to the post of a Chargeman on short term contract basis for a period of six months. The first was published on 24.06.2005 (page 71 of the writ petition) wherein local candidates possessing local certificates and registered under the local Employment Exchange and having required qualifications were given the opportunity to appear at a ‘Walk-in-Interview’ on 29.06.2005 for selection to the post of a Chargeman on short term contract basis for a period of six months. The required qualification was a Degree or a Diploma in Mechanical/Automobile Engineering. On the next day, i.e., 25.06.2005, a similar notice for a ‘Walk-in-Interview’ was published for the post of Junior Engineer on short term contract basis for a period of six months in the Directorate of Transport, Port Blair. From Annexure P-12 (page 57 and 58 of the writ petition) it is noticed that the petitioner is the successor of a government settler (dependant of a Govt. Settler) and certified to belong to Category-II of local residents. After having passed the Secondary School Examination from Central Board of Secondary Education, he acquired Diploma in Second Division in Automobile Engineering in the year 1991 from the Bhubanananda Orissa School of Engineering, Cuttack (Page 58 of the writ petition). In paragraph 19, the petitioner has stated that pursuant to the said advertisements, he applied both for the post of Junior Engineer as well as for the post of Chargeman and prayed for relaxation of his age taking into consideration his experience and educational qualifications. Thereafter he was permitted to appear in the interview for the posts mentioned above. Subsequently, on 5.7.2005 (Annexure P-6 at page 35 of the writ petition), office order No.971 was issued from the office of the Directorate of Transport wherein it was intimated that “on the recommendations of the Selection Committee (DPC)” held on 29.6.2005, the Director of Transport has been pleased to engage the petitioner as a Chargeman along with other persons on short term contract basis on the same post for a period of six months on a consolidated wage of Rs. 8000/- per month with immediate effect. It appears that thereafter on or about 5th January, 2006 (page 37 of the writ petition) the petitioner was given an extension of appointment but, on the post of a Junior Engineer for a period upto 30.06.2006. Subsequently, on 7.6.2006 (page 38 of the writ petition) the petitioner’s appointment on contract basis was extended on the post of a Junior Engineer upto 31.12.2006. Subsequently, on 7.6.2006 (page 38 of the writ petition) the petitioner’s appointment on contract basis was extended on the post of a Junior Engineer upto 31.12.2006. Thereafter again on 11.12.2006 (page 39 of the writ petition), the said appointment was extended upto 30.6.2007 by an office order No.3220 dated 11.2.2006. Subsequently, again the said appointment was extended till 31.12.2007 vide office order No.1718 dated 25.06.2007 (page 40 of the writ petition). Similarly, the other documents which have been brought on record would go to show that the petitioner’s appointment on the post of Junior Engineer was continuously extended vide documents brought on record between pages 41 to 46 of the writ petition. According to the petitioner and as has been stated in paragraphs 20 and 21 of the writ petition, the respondent No.5 had addressed a recommendation to the Chief Secretary, Andaman and Nicobar Administration for regularization of the petitioner to the post of Junior Engineer and although the petitioner was fully eligible for the post and had not crossed the age bar, the said recommendation did not meet with any positive result although the post of Junior Engineer, according to the petitioner, was and is still lying vacant since 1997 and, inspite of repeated representations for consideration of his case, the respondents have not paid any heed to his abilities and experiences etc. On 2.8.2010, the respondents invited applications from eligible candidates for filling up the post of Chargeman and Junior Engineer without considering the case of the petitioner although he has been performing the duties of a Junior Engineer, though on so called “short term contract basis” which, as stated above, was repeatedly extended. The petitioner has further stated that he has rendered services as Junior Engineer for years together without any adverse remarks and the 2010 Employment Notice fixing the age limit between 18 to 33 years should be suitably extended because the petitioner has crossed the age limit of 33 years in such a state of being put in a condition of suspended animation. In the background of the aforementioned facts and circumstances, the present writ petition has been filed. In the background of the aforementioned facts and circumstances, the present writ petition has been filed. An affidavit in opposition has been filed and in paragraph 8, the respondent Nos.2 to 5 have stated that though the petitioner is performing the duties of Junior Engineer, the same is on contract basis and he does not have the right for regularization and, therefore, he does not have any right for regularization on that post. It is in the background of the aforementioned facts and circumstances, that this case has been argued claiming regularization on the touch stone of Articles 14 and 16 of the Constitution of India. Learned Counsel for the respondents has referred to the case of State of Karnataka and others Vs. Umadevi (3) reported in (2006) 4 SCC 1 , in support of her contention that the petitioner’s entry as daily rated mazdoor was illegal and therefore, in terms of the said judgment in Umadevi (3)’s case, the petitioner cannot claim regularization. We are afraid, we cannot accept such a submissions. It is true that the first appointment on the basis of daily rated mazdoor was done without adverting to any advertisement etc. but when the services of the petitioner was terminated, a Labour Court gave a judgment in his favour holding that the termination was not fair, and directed that he should be reinstated. The petitioner continued to work thereafter and it was only after ‘Walk-in-Interview’ publications were made, that he applied both for the post of Chargeman as well as Junior Engineer. He, thereafter, faced a regular selection process and on the recommendations of the Selection Committee, he was appointed firstly as Chargeman and thereafter, on the expiry of the period of six months, he was appointed on the post of a Junior Engineer. This was obviously, because he was qualified being a Diploma Holder in Automobile Engineering. Therefore, the entry of the petitioner into the service in the category of Junior Engineer cannot be said to be irregular or illegal. In other words, he was neither a backdoor entrant nor was he an illegal entrant. The law is well settled that once a person is conferred with a status legally, he cannot be denuded of such a status illegally -“Once vested, cannot be divested” except in accordance with law. Mrs. Anjili Nag, on being directed to produce the records, produced the same before this Court. The law is well settled that once a person is conferred with a status legally, he cannot be denuded of such a status illegally -“Once vested, cannot be divested” except in accordance with law. Mrs. Anjili Nag, on being directed to produce the records, produced the same before this Court. She could not evade the point raised by the petitioner to the effect that he has been continuously working as Junior Engineer for years together. In other words, the fact that the petitioner is still continuing to work on the post of a Junior Engineer, could not be disputed by her even with reference to the records. Let it be recorded that after perusing the records, the same was duly returned to Mrs. Anjili Nag in Court. In the facts and circumstances of this case, we are of the view that the petitioner is entitled to the relief of absorption on the post of Junior Engineer with effect from 15.1.2006 (the date on which he was first appointed as Junior Engineer vide office order No.80). However, he will not be entitled to any back wages, but will be given notional seniority w.e.f. from the said date. The respondents will immediately fix his pay scale in the appropriate scale notionally w.e.f. 15.1.2006 but the actual benefits of the scale would enure to his credit prospectively from the date of this judgment. All benefits must be given to him within a period of three months from the date of receipt of a copy of this judgment. The writ petition stands allowed to the extent indicated above. The impugned Order of the learned Tribunal passed in OA No.101/AN/2010 on 22.08.2012 is hereby set aside and Quashed. No order as to costs. I agree.