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2022 DIGILAW 517 (PAT)

Santosh Kumar v. Rajendra Agricultural University

2022-06-27

SANJEEV PRAKASH SHARMA

body2022
JUDGMENT SANJEEV PRAKASH SHARMA, J.:– Heard the parties. 2. The petitioners have preferred these writ petitions wherein the petitioners have prayed as under:— i. To Set aside/Stay the advertisement no. 2/2020 dated 13./03/2020 published by Dr. Rajendra Prasad, Central Agriculture University, Pusa, Samastipur, Bihar for the recruitment to various KVC positions. ii. To stay the advertisement no. 3/2019 dated 28.05.2019 2020 published by Dr. Rajendra Prasad, Central Agriculture University, Pusa, Samastipur, Bihar for the recruitment to various posts. iii. To direct the respondents not to terminate the petitioners who are working since long more than ten years on the basis of contract basis. iv. To direct the respondents to give priorities of the petitioners in appointment on the basis of advertisement dated 13/03/2020. v. To stay the appointment on the basis of advertisement dated 13/03/2020 and 28/05/2019. vi. The condition of appointments made in the aforesaid advertisement is not binding upon the petitioners. vii. No age limit is fixed on the petitioners who are working on contract basis. viii. The appointment must be made on the basis of 35% Kota fixed for the contract basis appointment and 65% kota for direct appointment. ix. To pass such other order/order, Direction/Directions as your Lordships may deem fit and proper in the facts and circumstances of the case. 3. The case of the petitioners is that the petitioners were appointed on various posts on contractual basis and have been working on the said post for a long period ranging between 8 years to 15 years. An advertisement was issued by the University on 13th March, 2020, for recruitment to various posts which included the posts manned by the petitioners. Learned counsel for the petitioners submits that the petitioners have a right to continue on the said post and the said post could not have been filled by way of advertisement. As the petitioners have been working on the said post on contractual period for a long time, they were entitled to de-regularized on the said post. Learned counsel in support of such submission, has taken to this Court to the judgment passed in the case of Dileep Kumar & Ors. Vs. Rajendra Agriculture University & Ors. decided by a coordinate Bench on 18.12.2014 as well as to an order passed by the Division Bench in L.P.A. No. 396 of 2015 (Akhilesh Kumar Singh Vs. Learned counsel in support of such submission, has taken to this Court to the judgment passed in the case of Dileep Kumar & Ors. Vs. Rajendra Agriculture University & Ors. decided by a coordinate Bench on 18.12.2014 as well as to an order passed by the Division Bench in L.P.A. No. 396 of 2015 (Akhilesh Kumar Singh Vs. The Bihar Agriculture University, Sabour, Bhagalpur & Ors.) dated 16.04.2015 and to an order passed by the Apex Court in Civil Appeal No. 3757 of 1990, dated 16th August, 1990, to submit that the case of the petitioners is covered by the said judgments where orders have been passed for regularization. 4. Taking the statement of the learned counsel at Bar, this Court carefully read the aforesaid three judgments and found that the submission of the learned counsel is wholly misleading. The judgment passed in the case of Dileep Kumar (supra) was also in relation to the same advertisement wherein the issue raised by the petitioners was to grant waitage and relaxation in the advertisement which was considered by the High Court and in the case of Dileep Kumar (supra) the coordinate Bench was examining the case of the petitioners who challenged the age bar laid down in the advertisement and prayed that they should be granted benefit of age relaxation as they were working on contractual basis with the University. The coordinate Bench allowed the said writ petition clarified that the age bar will not applied to the person who had already working in the University and would be limited to only those who are fresh candidates. In the second judgment passed by the Division Bench, a same advertisement was under consideration and claim was also made for regularization. The Division Bench observed that the issue regarding regularization had been taken up by the Supreme Court in S.L.P. No. 18594 of 1994 and Their Lordships have reiterated that 35% vacancy shall be filed up wsith the eligible and qualified casual employees and remaining 65% shall be filled by the process of selection or direct recruitment. In the advertisement which has been issued by the University, the Division Bench directed that the appellant who was working within for past ten years would be granted the benefit of waitage or relaxation as was being given to casual employees. 5. In the advertisement which has been issued by the University, the Division Bench directed that the appellant who was working within for past ten years would be granted the benefit of waitage or relaxation as was being given to casual employees. 5. The learned Senior Counsel appearing for the University has pointed out that in the present advertisement 25 marks were given as additional bonus marks to the candidates who had applied and had been working with the University on contractual or casual basis. It was also informed that in terms of the directions issued by this Court the age bar was not imposed on the applicants who are the existing contractual or casual employee of the University. It is also pointed out that all the petitioners have already participated and after having been given the aforesaid relaxation none of them could clear the selection process and their services have been terminated and in their place regularly selected employees have already joined. 6. This Court notices that the judgment of 1990 cited by the petitioners with reference to directions of regularization has become otiose after the law laid down by a larger Bench in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi & Ors., reported in (2006) 4 SCC 1 , wherein the Apex Court has held as under:— “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagarajan (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme. 54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents. 55. In cases relating to service in the commercial taxes department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.A. No. 3595-3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them. 56. Coming to Civil Appeal Nos. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them. 56. Coming to Civil Appeal Nos. 1861-2063 of 2001, in view of our conclusion on the questions referred to, no relief can be granted, that too to an indeterminate number of members of the association. These appointments or engagements were also made in the teeth of directions of the Government not to make such appointments and it is impermissible to recognize such appointments made in the teeth of directions issued by the Government in that regard. We have also held that they are not legally entitled to any such relief. Granting of the relief claimed would mean paying a premium for defiance and insubordination by those concerned who engaged these persons against the interdict in that behalf. Thus, on the whole, the appellants in these appeals are found to be not entitled to any relief. These appeals have, therefore, to be dismissed. 57. C.A. Nos. 3520-24 of 2002 have also to be allowed since the decision of the Zilla Parishads to make permanent the employees cannot be accepted as legal. Nor can the employees be directed to be treated as employees of the Government, in the circumstances. The direction of the High Court is found unsustainable.” 6. Keeping in view above this Court feels saddened that the learned counsel appearing for the petitioners has attempted to waste the time of Court by arguing something which is not there in the judgments delivered by this Court as well as by the Supreme Court as cited by him. 7. Any Lawyer who appears in the High Court is required to assist the Court as they are Officers of the Court, they are required to inform about the latest position of law as laid down by the Apex Court and cite the same even if the case of the petitioner may go against them, that is, the level which is expected from the Lawyers of the High Court. Leaving it at that, I do not want to make any further comments. 8. Leaving it at that, I do not want to make any further comments. 8. Coming on the facts of the case, I find that the services of the petitioners have already been terminated, the process under the advertisement had already been completed, none of the selected persons have been impleaded as party nor the petitioners have challenged their termination in the present petition by making any amendments. More over, this Court finds that the termination is in consequence of the regularly selected persons having joined the post. There is no right available to contractual employee to continue on the post. The petitioners after having participated in the regular selection and having failed therein can not claim continuation. 9. In view thereof, there are no merits found in the case, the writ petitions are dismissed accordingly. No costs.