Biswajit Sarkar, Son of Sri Dhirendra Kumar Sarkar v. State of Tripura
2017-09-21
T.VAIPHEI
body2017
DigiLaw.ai
JUDGMENT & ORDER : The sole question which falls for consideration in this writ petition is whether the service of the petitioner can be regularized with effect from the date of his initial engagement as Foreman? 2. The facts giving rise to this writ petition may be briefly noticed at the outset. The petitioner was initially appointed as Foreman, Electronic & Telecommunication Engineering in the pay scale of Rs.2,200-Rs.4,000/- on ad hoc basis on 31-3-2000 in the Polytechnic Institute, Narsingarh. His pay scale was revised to Rs.8,000-Rs.13,500/- by the Memorandum of engagement dated 28-3-2000. The Tripura Public Service Commission after holding the selection process duly recommended him for the post of Foreman. On the recommendation of the TPSC, the State-respondents issued the Notification dated 13-3-2006 appointing him to the post of Foreman, Electronic & Telecommunication Engineering. The grievance of the petitioner that the services rendered by him from 31-3-2000 was not taken into account, and his service should be regularized with effect from the date he was initially appointed as Foreman on ad hoc basis. It is the contention of the petitioner that he had been continuously serving as Foreman right from the time of his ad hoc appointment without any break in his service and he is, there fore, entitled to regularization of his service from the date of his initial engagement i.e. 31-3-2000 as he has now been selected for the post in accordance with law. It is his further contention that the services of similar persons, who were initially appointed on ad hoc basis, were also regularised with effect from the respective dates of their initial ad hoc appointment pursuant to the judgment dated 19-4-2013 passed by this Court in WP(C) No. 476 of 2010 and inasmuch as no appeal was filed by the State respondents against the said judgment, he is also entitled to be treated equally. 3. No affidavit-in-opposition is filed by the state-respondents till now. However, this is not really important in view of the settled law of the land. It is a settled principle of law that continuance in service for long period on part-time or temporary basis confers no right to seek regularisation of service. In the instant case, there is no question of regularisation of service of the petitioner.
However, this is not really important in view of the settled law of the land. It is a settled principle of law that continuance in service for long period on part-time or temporary basis confers no right to seek regularisation of service. In the instant case, there is no question of regularisation of service of the petitioner. True, he was initially appointed as Foreman from time to time on ad hoc basis or temporary basis on 31-3-2000 with the conditions, among others, that the appointment was purely temporary for a period of 6 months from the date of joining of the post and that his appointment would not bestow upon him a claim for regular appointment and that ad hoc service rendered by him would not count for purpose of the seniority in the grade and for eligibility for promotion, confirmation, Electronics and Telecommunication Engineering, Polytechnic Institution, etc. and that he would to face the TPSC for selection to the post of Foreman. After working there on temporary basis, he applied for the post of Foreman in response to the advertisement issued by the TPSC and on his selection, he appointed to the post of Foreman on 13-3-2006 in the pay scale of Rs.7,450- 13,000/- on regular basis. This appointment is not exactly regularisation of the service of the petitioner. In my opinion, he was appointed to the said post on the recommendation of TPSC in accordance with the extant recruitment rules and not by regularization as is known in the true sense of the term. In State of Rajasthan and others v. Daya Lal and others, (2011) 2 SCC 429 , the Apex Court sums up the principles relating to regularization of service in the following manner: “12. We may at the outset refer to the following well settled principles relating to regularisation and parity in pay, relevant in the context of these appeals: (i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts.
The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised. (ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be “litigious employment”. Even temporary, ad hoc or daily wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right. (iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates. (iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees. (v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute. [See State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 M. Raja v. CEERI Educational Society, (2006) 12 SCC 636 S.C. Chandra v. State of Jharkhand, (2007) 8 SCC 279 Kurukshetra Central Coop.
The right to claim a particular salary against the State must arise under a contract or under a statute. [See State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 M. Raja v. CEERI Educational Society, (2006) 12 SCC 636 S.C. Chandra v. State of Jharkhand, (2007) 8 SCC 279 Kurukshetra Central Coop. Bank Ltd. v. Mehar Chand (2007) 15 SCC 680 and Official Liquidator v. Dayanand.] (2008) 10 SCC 1 (Underlined for emphasis) 4. In the case at hand, the petitioner was initially appointed as Foreman on ad hoc basis with the express conditions that his service was for a period of six months from the date of joining the post and that such ad hoc appointment would not bestow upon him a claim for regularization and that such ad hoc service rendered would not be counted for the purpose of seniority in the grade and for eligibility for promotion, confirmation, etc. What actually in his case, in my judgment, is that he was newly appointed to the post of Foreman on 13-3-2006 on regular basis on the recommendation of the TPSC after he underwent due recruitment process. The past services rendered by him on the basis of his ad hoc appointment was never taken into consideration when he was selected by the TPSC after following the process of recruitment under the extant rules. Consequently, the service of the petitioner cannot be regularized from the initial date of his engagement i.e. with effect from 31-3-2000. I have carefully gone through the judgment of this Court in WP(C) No. 476 of 2010 upon which the petitioner places heavy reliance, but that decision was rendered in the context of regularization of the services of the petitioners, who belonged to ST and ST community, who were initially appointed for the post of Lecturers, Polytechnic Institute under special drive by relaxing the qualifying marks prescribed by the AICTE, but the defects in the procedures of their appointment was subsequently cured by the State-respondents after obtaining the approval of the TPSC. Now, how can this case be of any assistance to the petitioner, who was never appointed by special drive recognized by law? No case for retrospective regularization is, therefore, made out by the petitioner calling for my interference. 5. This writ petition fails and is, therefore, dismissed. The parties are, however, directed to bear their respective costs.