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2020 DIGILAW 101 (CAL)

Nim Kanta Maiti v. State Of West Bengal

2020-01-24

MD.NIZAMUDDIN

body2020
JUDGMENT Md. Nizamuddin, J. - Heard Learned Advocates appearing for the parties. 2. These three Writ Petitions have been filed by the petitioners seeking relief of permanent absorption and incidental reliefs. 3. In view of similarity of the facts, issues involved and relief claimed in these Writ Petitions I am inclined to take all the three Writ Petitions together. 4. All the petitioners in the aforesaid three Writ Petitions were appointed on different dates as daily rated trainee workers for the post of Driver-cumConductor in Calcutta State Transport Corporation and their date of appointment and present status in the Corporation as per submission of the Learned Advocate for the respondents are hereunder. Writ Petition No. Date of Appointment of the Petitioner Present Status W.P. 29705(W)/2014 Petitioner No. 1 - 22.10.03 Petitioner No. 2 - 22.10.03 Still Working Has already attained the age of 60 years in May, 2018 as per official record. W.P. 29706(W)/2014 Petitioner No. 1 - 08.01.03 Petitioner No. 2 - 09.12.03 Petitioner No. 3 - 11.12.03 Has already attained the age of 60 years in January, 2019 as per official record. Has discontinued his job since 13.02.2019 without any authorized leave. Still Working W.P. 32860(W)/2014 Petitioner No. 1 - 22.10.03 Petitioner No. 2 - 22.10.03 Petitioner No. 3 - 22.10.03 Has already attained the age of 60 years as per official record. Has already attained the age of 60 years as per official. Has already attained the age of 60 years as per official. 5. One of the significant terms and conditions of appointment of all the aforesaid petitioners as appears from appointment letters annexed to the Writ Petition is as follows: "Engagement on contract would be on adhoc extra temporary day to day "No work no pay" basis depending upon day to day requirement of crews at the depots assigned to you and you would be required to report daily for duty to the depot authority of assigned depot on your own volition in any shift as per duty schedule." 6. Learned Advocate appearing for the petitioners in support of his contention of regularization/permanent absorption has relied on the judgments of the Hon'ble Supreme Court in the case of State of Karnataka & Ors -vs- M.L. Kesari & Ors., (2010) AIR SC 2587 , Durgapur Casual Workers Union & Ors -vs-Food Corporation of India & Ors.,2014 42 SCD 162 . 7. Learned Advocate appearing for the petitioners in support of his contention of regularization/permanent absorption has relied on the judgments of the Hon'ble Supreme Court in the case of State of Karnataka & Ors -vs- M.L. Kesari & Ors., (2010) AIR SC 2587 , Durgapur Casual Workers Union & Ors -vs-Food Corporation of India & Ors.,2014 42 SCD 162 . 7. The case of M.L. Kesari (supra) relied upon by the petitioners has also been relied upon by the respondents which I will consider in later part. 8. The case of Durgapur Casual Workers Union (supra) is distinguishable and is not fully applicable to the present case since in the said case there was award of the Tribunal for absorption of casual labourers of F.C.I earlier worked under contractor and the matter travelled upto Apex Court where the said award was upheld but in the instant case many petitioners have already attained the age of 60 years and one petitioner has discontinued the service as such order of permanent absorption cannot be passed in the case of those petitioners. 9. Learned Advocate appearing for the respondents has opposed the Writ Petition mainly on the ground that the engagement of the petitioners were purely temporary and on contractual basis and was not in a sanctioned post and contended that in the engagement letters of the petitioners the expression "interview" was nothing but an elimination process since the number of candidates applied for such temporary posts were much more than the number of persons required. He further contends that there was no assurance by the respondent corporation that after completion of any particular tenure as contractual worker, the petitioners would be absorbed as regular permanent employees and the respondent/corporation rather in their engagement letters has made specific stipulation that engagement was as "ad hoc extra temporary worker" and they would have no claim for permanent absorption in service. He further contends that claim of the petitioners that in past during the period 2007-09 the corporation have regularised some contractual appointees, it was a one-time scheme for permanent absorption for those who had been engaged on compassionate appointments as heirs of the employees who died-in-harness and had worked on the basis of such engagement for more than 10 years at the time of floating that scheme and as such the said scheme which is not in existence is not applicable to the case of the petitioners herein. He further supports the impugned order and its reasoning. He contends that the engagement of the petitioners were purely on contractual and on "no work no pay" basis and their engagement were not made as per rules or prescribed norms for appointment and were not against any sanctioned post in the corporation. He contends that at present there is no scheme of the corporation in existence for regularisation of service and the right or claim of the petitioners made would accrue only upon introduction or floating of any such scheme in future for regularisation. He also contends that financial condition of the corporation does not permit it to take such burden of regularisation or absorption of the petitioners as prayed for. 10. Learned Advocate for the respondents in support of his contention has relied upon the following decisions: (i) Secretary, State of Karnataka & Ors. -vs- Umadevi (3) & Ors, (2006) 4 SCC 1 (ii) State of Karnataka & Ors. -vs- M.L. Kesari & Ors., (2010) 9 SCC 247 (iii) State of Jammu & Kashmir & Ors. -vs- District Bar Association, Bandipora, (2017) 3 SCC 410 (iv) Renu & Ors. -vs- District & Sessions Judge, Tis Hazari Courts, Delhi & Anr., (2014) 14 SCC 50 11. Learned Advocate for the respondents submit that in the facts and circumstances the petitioners could not make out any case for the relief of regularization or absorption in service and the judgments relied upon by the petitioners do not help the case of the petitioners. 12. Learned Advocate for the respondents submit that in the facts and circumstances the petitioners could not make out any case for the relief of regularization or absorption in service and the judgments relied upon by the petitioners do not help the case of the petitioners. 12. He further submits that the exceptions carved out at paragraph 53 of the said judgment in the case of Uma Devi (3) (supra) wherein a direction was given to the Union of India, State Governments and their instrumentalities to take steps to regularise as a one-time measure of the services of irregular appointees who have worked for ten years or more in a duly sanctioned post, is not applicable to the case of the petitioners since such direction for framing a scheme for regularisation contained fulfilment of three essential conditions e.g. (i) completion of 10 years service on the date of passing the said judgment, (ii) temporary or contractual appointments should not be illegal but irregular and (iii) such temporary or contractual appointments should have been against duly sanctioned post whereas on the date of the said judgment none of the petitioners has completed 10 years of service, and none of them was engaged against any sanctioned post, and their engagements in terms of clarification made by the said judgment cannot be construed as appointments/engagements deserves for coming within the zone of such consideration for enlistment in a scheme for regularisation. 13. Learned Advocate for the respondents contends that exception to the general principle against regularisation enunciated in Uma Devi (3) (supra) has been considered by the Hon'ble Supreme Court in paragraph 7 of the judgment of M.L. Kesari (supra) which is as follows: "7. It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi (3), if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular." 14. Learned Advocate for the respondents relies on paragraph 13 of the judgment of the Hon'ble Supreme Court in the case of Renu & Ors. (supra) which is as follows: "13. A similar view has been reiterated by the Constitution Bench of this Court in State of Karnataka v. Umadevi (3), observing that any appointment made in violation of the statutory rules as also in violation of Articles 14 and 16 of the Constitution would be a nullity. "Adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment." The Court further rejected the prayer that ad hoc appointees working for long be considered for regularisation as such a course only encourages the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to compete." 15. He also relies on paragraph 26 of the judgment in the case of State of Jammu & Kashmir & Ors. -vs- District Bar Association (supra) wherein it has been held as follows: "26. The principles will have to be formulated bearing in mind the position set out in the above judgments. Regularisation is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following the due process envisaged by Articles 14 and 16 of the Constitution. Essentially a scheme for regularisation, in order to be held to be legally valid, must be one which is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies. Essentially a scheme for regularisation, in order to be held to be legally valid, must be one which is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies. In all such cases it may be left open to Courts to lift the veil to enquire whether the scheme is aimed at achieving the above objective and is a genuine attempt at validating irregular appointments. The State and its instrumentalities cannot be permitted to use this window to validate illegal appointments. The second rider which must necessarily be placed is that the principle as formulated above is not meant to create or invest in a temporary or ad hoc employee the right to seek a writ commanding the State to frame a scheme for regularisation. Otherwise, this would simply reinvigorate a class of claims which has been shut out permanently by Uma Devi (3). Ultimately, it would have to be left to the State and its instrumentalities to consider whether the circumstances warrant such a scheme being formulated. The formulation of such a scheme cannot be accorded the status of an enforceable right. It would perhaps be prudent to leave it to a claimant to establish whether he or she falls within the exceptions carved out in para 53 and falls within the ambit of a scheme that may be formulated by the State. Subject to the riders referred to above, a scheme of regularisation could fall within the permissible limits of Uma Devi (3) and be upheld." 16. Considering my own judgment dated 27.09.2019 passed in W.P No. 32861 (W) of 2014 (Bimal Chandra Roy & Anr. Subject to the riders referred to above, a scheme of regularisation could fall within the permissible limits of Uma Devi (3) and be upheld." 16. Considering my own judgment dated 27.09.2019 passed in W.P No. 32861 (W) of 2014 (Bimal Chandra Roy & Anr. -vs- the State of West Bengal & Ors.) where the facts and circumstances and issues involved were similar to the present case and considering the facts and circumstances of the instant case, submission of the parties and the judgments discussed above and taking into consideration the present bad financial condition of the respondent corporation which is running in loss, these three Writ Petitions are disposed of by holding that since the Petitioner No. 2 in W.P. No. 29705 (W) of 2014 and the Petitioner No. 1 in W.P. No. 29706 (W) of 2014 have already attained the age of 60 years in May, 2018 and in July, 2019 respectively and all the three petitioners in W.P. No. 32860 (W) of 2014 have already attained the age of 60 years as per record maintained in the office of the respondent and the Petitioner No. 2 in W.P. No. 29706 (W) of 2014 has discontinued his service since 13.02.2019 without any authorized leave as submitted by the learned Advocate appearing for the respondents, their claim for relief of permanent absorption cannot be considered. I direct the respondent corporation to consider the case of permanent absorption and regularization of service of the Petitioner No. 1 in W.P. No. 29705 (W) of 2014 who was appointed on 22.10.2003 and the Petitioner No. 3 in W.P. No. 29706 (W) of 2014 who was appointed on 3.11.13 and have worked for more than 10 years and are still in service of the respondent corporation and whose appointment cannot be called illegal and at best it may be called irregular in the facts and circumstances of the case. The respondent corporation shall consider the case of these two petitioners in W.P. No. 29705 (W) of 2014 and in W.P. No. 29706 (W) of 2014 for their regularization with effect from their date of appointment on notional basis without any monetary benefit but the said dates of appointment shall be taken into account for their pensionary benefit and petitioners shall be given all the service benefit as of a permanent employee accordingly and whole process of such permanent absorption and regularization shall be completed by the respondents concerned within 12 weeks from the date of communication of this order. 17. These Writ Petitions W.P. No. 29705 (W) of 2014 and W.P. No. 29706 (W) of 2014 are disposed of by partly allowing the same and W.P. No. 32860 (W) of 2014 is dismissed accordingly. 18. There will be no order as to costs. 19. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.