Research › Search › Judgment

Calcutta High Court · body

2014 DIGILAW 20 (CAL)

Kalyan Biswas v. State of West Bengal

2014-01-15

PRASENJIT MANDAL

body2014
Judgment : Prasenjit Mandal, J. This mandamus writ petition is for commanding the respondents directing that all the writ petitioners be in continuous service along with other benefits, commanding the respondents to declare the petitioners be regularised in service from the date of their initial appointment as per rules and policies, commanding the respondents to pay to the petitioners arrears of salaries directing the respondents not to allow them to continue in service those who were illegally regularised in violation of Government rules and policies for all purposes and other consequential reliefs. The petitioners were appointed to the posts of Instructor (Trade-Moulder) on ad hoc basis under the respondent no.3 at Kalyani on different dates and subsequently, they were retained in the said posts. Their pay was fixed at the minimum level of pay of the scale of Rs.4,500-9,700/- plus other allowances as admissible under Rules. Such appointment was made for a period of six months with indication that after the expiry of the said period from the date of joining to the said post or on the appointment of an Instructor on regular basis to the said post whichever is earlier, they shall be terminated automatically. The extension was made subsequently and then they are not allowed further extension. Under such circumstances, in 2002 they filed a writ petition being W.P. No.7482(W) of 2002 which was dismissed. The matter went to the Division Bench in appeal and the Division Bench affirmed the said order of the learned Single Judge on August 4, 2008 in F.M.A. No.759 of 2005. The Special Leave Petition preferred by the petitioners was also dismissed. Not only that, the petitioners preferred a curative petition which was also dismissed. Subsequently, when some juniors were appointed in the regular scale, they filed the present writ petition contending the violation of the provisions of Articles 14, 16, 21 & 39(d) of the Constitution of India. The respondents are contesting this application contending, inter alia, that the writ petitioners have no right to claim for appointment as they were not recruited through the regular process of selection but they were appointed on ad hoc basis for a limited period and as such, after expiry of that period, there is no question of absorption. So, the application should be dismissed. Now, the question is whether the writ petitioners are entitled to get the reliefs as prayed for. So, the application should be dismissed. Now, the question is whether the writ petitioners are entitled to get the reliefs as prayed for. Upon hearing the learned Counsel for the parties and on going through the materials on record including the written argument filed by the respondents, I find that the petitioner no.1 was appointed by an order dated June 6, 2000 as Instructor (Trade-Moulder) purely on ad hoc basis for a period of six months only or till the post is filled up on regular basis whichever is earlier (vide Annexure-P/3 at page no.55). The petitioner no.1 was entitled to get the salary in the minimum of the scale of pay for Instructor, i.e., Rs.4,500-9,700/- per month plus other allowances as admissible to other regular employee. Accordingly, Shri Kalyan Biswas was directed to join the said post and he joined the said post accordingly on June 7, 2000. Similar is the position in respect of other writ petitioners also. Thus, I find that the appointment of the writ petitioners was purely on ad hoc basis for a period of six months only or till the post is filled up on regular basis whichever is earlier at the minimum pay admissible to the regular employee. Thus, it can be stated that the petitioners were not placed under any regular scale of pay at any point of time. From the subsequent Office Orders, it appears that Shri Kalyan Biswas was directed to take over the charges of Moulding Section from one Ramananda Mukherjee, Supervisor, IIT Kalyani and to look after the Moulder Trade until further order and he was placed in charge of certain materials (vide Annexure-P/9 & P/10). Subsequently, the petitioners filed a writ petition being W.P. No.7482(W) of 2002 for giving directions upon the respondents to regularise and/or absorb them against permanent vacancies available with the respondents and the said writ petition was dismissed by this Hon’ble Court by an order dated July 24, 2003. The writ petitioners preferred an appeal being F.M.A. No.759 of 2005 which was also dismissed on August 4, 2008. Subsequently, the writ petitioners preferred a Special Leave Petition before the Apex Court, the said Special Leave Petition was also dismissed. They also preferred a curative petition which was also dismissed (vide Annexure-P/14). The writ petitioners preferred an appeal being F.M.A. No.759 of 2005 which was also dismissed on August 4, 2008. Subsequently, the writ petitioners preferred a Special Leave Petition before the Apex Court, the said Special Leave Petition was also dismissed. They also preferred a curative petition which was also dismissed (vide Annexure-P/14). Thus, I find that so far as the regularisation of the service of the writ petitioners are concerned, the same was heard and considered by the writ Court and the matter has reached its finality, when the curative petition filed by them before the Apex Court was also dismissed. Subsequently, the petitioners filed this writ petition when they found that some other employees junior to them were appointed in the regular basis and as such, they have claimed the reliefs as stated above. So far as the appointment of other junior staff, such as, Shri Aniruddha Guha, Shri Bijoy Roy, Shri Shyamal Kanti Dutta and others are concerned, I find from the materials on record that they were appointed to the posts of Instructor under a regular scale of pay of Rs.4,500-9,700/- plus other allowances as admissible under Rules and there is no indication in their appointment letters that they were appointed on ad hoc basis. The said matter was tested when Shyamal Kanti Dutta filed a writ petition being W.P. No.15663(W) of 2002 and the same was allowed directing the concerned respondent authorities to regularise the service of the writ petitioner with effect from the date of his initial appointment. But the case of the petitioner cannot be identified with that of those of petitioners who were appointed on temporary basis. Therefore, in my view, the question of violation of the Articles 14, 16, 21 & 39(d) of the Constitution of India does not arise at all. While arguing over the case, the learned Advocate on behalf of the respondent authorities has contended that the writ petitioners were not engaged consequent to the selection process according to the relevant recruitment rules and as such, they did not have any right to claim of regularisation of their services. The backdoor appointment policy cannot be accepted. In support of his contention, he has relied on the celebrated decision of State of Karnataka v. Umadebi (3) & ors. The backdoor appointment policy cannot be accepted. In support of his contention, he has relied on the celebrated decision of State of Karnataka v. Umadebi (3) & ors. reported in (2006) 4 SCC 1 particularly the paragraph nos.43, 45, 48 & 52 and thus, he has contended that the writ petitioners have no right to claim regularisation at all and the writ courts should not ordinarily issue directions for absorption, regularisation or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. He has also relied on the decision of Official Liquidator v. Dayananda reported in (2008) 10 SCC 1 at paragraph nos.66, 68 & 75 and thus, he has stated that in case of public employment, the appointment by backdoor methods should not be sustained. The judgment of the Constitutional Bench of Uma Debi’s case is binding on all Courts till the same is overruled by a Larger Bench and the ratio of the said Constitutional Bench judgment is being followed for dealing with the prayer for regularisation of service when the initial appointment was made on ad hoc/temporary/daily wage/casual employees, etc. He has also relied on the decision of Raghavendra Rao v. State of Karnataka reported in (2009) 4 SCC 635 in which case the Apex Court dismissed the appeals applied the principles laid down by the Constitutional Bench in the case of Uma Debi (supra). It was also held that the second round of lis was barred by the principles of constructive res judicata. Thus, it has been contended that the petitioners are not entitled to pray for regularisation, when their claim was set at rest by the decision of this Hon’ble Court in the writ matter and the same was affirmed by the Apex Court in the Special Leave Petition and the curative petition. Thus, it has been contended that the petitioners are not entitled to pray for regularisation, when their claim was set at rest by the decision of this Hon’ble Court in the writ matter and the same was affirmed by the Apex Court in the Special Leave Petition and the curative petition. Having due regard to the submissions of the learned Advocates of both the sides and on consideration of the materials on record, I am of the view that since the initial appointment of the writ petitioners was purely on ad hoc basis for a period of six months only with effect from their respective dates of joining or till the regular appointment was made whichever was earlier and they were not placed under any regular scale of pay, but, they were given the minimum in the scale for which the regular employees were appointed, in my view, the matter having already been decided in the earlier writ petition and in consequence in the appeal, the Special Leave Petition and then in the curative petition, the present writ petition is barred by the principle of constructive res judicata. The decisions of Umadebi (supra), Official Liquidator (supra) and Raghavendra Rao (supra), have clearly indicated the scheme for appointment and regularisation of the employees according to the Constitution scheme and not to absorb them in an arbitrary manner. If they are regularised in an arbitrary manner sympathetically, then certainly it would cause the defeat the constitutional scheme as enshrined in Articles 14, 16 of the Constitution of India. Moreover, the petitioners are not entitled to re- gitate the matter by filing a writ petition again. The petitioners were not allowed to sign on the attendance register after December 6, 2000 as their appointments were purely for a period of six months or till regular appointments were made to the said posts the question of payment of salary or permitting them to sign on the attendance register does not arise at all after December 6, 2000. It does not a matter that they were engaged subsequently on ad hoc basis, but, the question is whether the appointment was made through a regular process of recruitment or not. Therefore, unless the entry in the service in proper, in my view, the question of granting the relief as sought for cannot be considered. It does not a matter that they were engaged subsequently on ad hoc basis, but, the question is whether the appointment was made through a regular process of recruitment or not. Therefore, unless the entry in the service in proper, in my view, the question of granting the relief as sought for cannot be considered. Accordingly, in my view, the petitioners are not entitled to get any of the reliefs as sought for in the writ petition. The writ petition is, therefore, devoid of merits and is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. C.A.N. No.4061 of 2011:- This C.A.N. application bearing C.A.N. No.4061 of 2011 is for passing an interim order directing the respondents to make payment of due monthly salary of the petitioners month by month in the posts of Instructor including arrears of salary w.e.f. December 7, 2000, December 9, 2000 and March 13, 2001. Since the writ petition is dismissed as a whole, this C.A.N. application has become infructuous. So, the C.A.N. application is rejected.