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2023 DIGILAW 657 (CAL)

Chief Secretary v. Satyendra Singh

2023-04-28

BISWAJIT BASU, KRISHNA RAO

body2023
JUDGMENT : KRISHNA RAO, J. 1. Both the appeals have been taken up for analogous hearing by consent of the parties as common issues are involved. 2. This appeal is directed against the interim order passed by the learned Single Judge in WPA No. 39 of 2022 (Smt B. Chandra Kala and Others vs. The Chief Secretary, A&N Administration and Others) with WPA No. 40 of 2022 (Shri Satyendra Singh vs. The Chief Secretary and Others) dated 24th August, 2022 wherein the learned Single Judge has directed the appellants herein to keep 15 posts vacant until disposal of the writ petition or until further orders of the Court whichever is earlier. 3. The interim order is in connection with the post of Junior Engineer. In the same order, learned Judge further directed that order passed in CAN/2/2022 shall be governed in WPA/40/2022 and the Administration is directed to keep one post of Surveyor vacant until disposal of the writ petition or until further order of the court whichever is earlier. 4. The respondents/writ petitioners have filed the writ petition No. 39 of 2022 praying for the following reliefs. “(a) A writ in the nature of mandamus commanding the respondent authorities to regularise the services of the petitioners as Junior Engineers in the Zilla Parishad under the Directorate of RDI, Andaman & Nicobar Administration, against vacant sanctioned posts of Junior Enginers. (b) A writ in the nature of mandamus directing the concernd authorities to grant equal pay for equal work of the ptitoners who are working at par with regular Junior Engineers of Zilla Parishad, PRI, Andaman & Nicobar Administration. (c) A writ in the nature of mandamus prohibiting the concerned respondents from discontinuing the services of the petitioners as Junior Engineers in the Zilla Parishad, PRI, Andaman & Nicobar Administration till their services are regularised against the vacant sanctioned posts of Junior Engineers. (d) A writ of and in the nature of Certiorari commanding the respondents to certify and transmit the papers relating to the instant case before this Hon’ble Court so that conscionable justice may be done by quashing any decision and/or action to discontinue the services of the petitioners. (e) Rule NISI in terms of prayer (a) to (d) as above. (d) A writ of and in the nature of Certiorari commanding the respondents to certify and transmit the papers relating to the instant case before this Hon’ble Court so that conscionable justice may be done by quashing any decision and/or action to discontinue the services of the petitioners. (e) Rule NISI in terms of prayer (a) to (d) as above. (f) An interim order be passed directing status quo of the service of the petitioners as Junior Engineers in the Zilla Parishad under PRI, Andaman & Nicobar Administration, till disposal of the writ application. (g) Such further order or orders and/or direction or directions be passed as to Your Lordship may deem fit or proper.” 5. The writ petitioner in WPA/40/2022 prayed for regularisation of his service in the post of Surveyor and has prayed for similar relief. 6. Initially when the writ petition was moved on April 26, 2022, learned Single Judge had directed the parties to exchange their affidavits and also directed that the respondents/writ petitioners’ services shall not be disturbed till 31st July, 2022 or until further orders. 7. During pendency of the writ petition, the Andaman Public Works Department ( for short “APWD”) had issued vacancy notice for recruitment in APWD to Group ‘B’ (NG) vacant posts of Architectural Assistant, Assistant (Arch Dept.), Planning Assistant, Junior Engineer (Civil), Junior Engineer (Electrical & Mechanical), and Group ‘C’ vacant posts of Draughtsman-Grade-III(Civil), Draughtsman-Grade-III( Electrical & Mechanical) and surveyor proposed to be filled up in the APWD by conducting open recruitment examination. 8. From the said vacancy notice, 85 posts of Junior Engineer (Civil), 12 posts of Junior Engineer (Electrical & Mechanical) and 10 posts of surveyor are to be filled up including other posts which are not subject matter of this proceedings. 9. 8. From the said vacancy notice, 85 posts of Junior Engineer (Civil), 12 posts of Junior Engineer (Electrical & Mechanical) and 10 posts of surveyor are to be filled up including other posts which are not subject matter of this proceedings. 9. The respondents/writ petitioners in MAT/10/2022 claiming for their regularisation to the post of Junior Engineer and the respondent/writ petitioner in MAT/9/2022 is claiming for the post of Surveyor and accordingly, after the publication of vacancy notice as mentioned above, the respondents/writ petitioners of MAT/10/2022 have filed civil application being CAN/2/2022 in WPA/39/2022 before the learned Single Judge praying for the following relief(s): “(a) Not to take any steps and/or further steps in pursuance of the advertisement issued by the Andaman Public Works Department being “Notice of Vacancy for Recruitment in APWD” which was uploaded APWD website of the Department and was also published in 13th August, 2022 issue of the “Daily Telegraphs. (b) Alternatively to restrain the Respondent Authorities from filling up 28 (twenty eight) posts of Junior Engineers and Surveyor pursuant to the advertisement, being Annexure A/4 to this application, until disposal of the present writ petition; (c) Such further order or orders be passed as to Your Lordships may deem fit and proper.” 10. The application filed by the respondents/writ petitioners being CAN/2/2022 was taken up for hearing by the learned Single Judge on 24th August, 2022 wherein the impugned order was passed and at the time of hearing of the said application, the learned Single has also observed that the order passed in CAN/2/022 shall be governed in WPA/40/2022. 11. The learned counsel for the appellants submits that the learned Single Judge had passed the impugned order by relying upon the judgement passed by this Court in the case of Shajan T. Ommen vs. The Lieutenant Governor and Others and held that the Zilla Parishad and the APWD were closely connected but the said finding of the learned Single Judge is not correct as in the case of Shajan T Ommen, point was whether the Lieutenant Governor (Administrator) of these Islands is having the power upon the employees of the Zilla Parishads for transfer or initiation of disciplinary proceedings and not with regard to filling up the posts. 12. 12. Learned counsel for the appellants submits that due to the impugned order wherein the learned Single Judge has directed to keep the 15 posts vacant till the disposal of the writ petition, the appellants are not in a position to fill up the said posts for which the day to day affairs of the Administration (APWD) are badly affected . 13. Learned counsel for the appellants has further submitted that, as per the office memorandum issued by the Government of India, Ministry of Finance dated 12th April, 2017, “all posts, except newly created posts, kept in abeyance or remaining vacant for a period of more than 2 years in any Ministry/Department/Attached Office/Subordinate Office/ Statutory body, would be considered as ‘deemed abolished’ unless an exemption has been given at the time of sanctioning the post.” 14. The learned counsel for the appellants submits that the learned Single Judge had passed the impugned order on 24th August, 2022 and one year is going to be over, and if the interim order continued, there is every chance that the said posts will be declared as ‘deemed abolished’. 15. Learned counsel for the appellants further submits that the respondents/writ petitioners have prayed for regularisation of their service on the ground that they have been appointed through the recruitment process and are working in the said posts for the last more than 11 years and as such their services are required to be regularised. The respondents/writ petitioners are claiming their regularisation at Zilla Parishad but the posts which is required to be filled up as per the vacancy notice is of APWD and the APWD is no way connected with the Zilla Parishad. 16. The learned counsel for the appellants further submits that as the respondents/writ petitioners are claiming for regularisation of their services in Zilla Parishad and as such the respondents/writ petitioners have filed the writ petition before the Hon’ble High Court. The learned Single Judge has passed an order for keeping the 15 posts vacant is of the posts of APWD which is the post of Administration and if the respondents/writ petitioners are claiming the said posts, the respondents/writ petitioners are required to be approached before the Tribunal as this Court has no jurisdiction to entertain the case of the respondents/writ petitioners. The learned counsel for the appellants prays for setting aside the impugned order dated 24th August, 2022. 17. The learned counsel for the appellants prays for setting aside the impugned order dated 24th August, 2022. 17. Per contra, learned counsel for the respondents/writ petitioners submits that the respondents/writ petitioners were appointed through the proper recruitment process but the respondents/writ petitioners were not given appointment of regular post and were allowed to perform their duties on contractual basis and their services are extended from time to time till today without any break. 18. The learned counsel for the respondents/writ petitioners submits that the Hon’ble Single Judge, while passing the impugned order dated 26th April, 2022 has categorically held that the appointments of the respondents were not back door entries and the respondents have not continued for 11 years by virtue of interim protection by the Court. 19. The learned Single Judge, in its order dated 26th April, 2022 has further held that the authorities on their own continued with the respondents/writ petitioners and utilised their services for 11 years and the said order was never challenged by the authorities till date and thus, the appellants have admitted the status of the respondents/writ petitioners and thus ignoring the status of the respondents/writ petitioners, the Administration cannot be allowed to go for a fresh recruitment process unless and until the services of the respondents/petitioners are not regularised. 20. The learned counsel for the respondents/writ petitioners submits that the appellants have admitted that the posts of Zilla Parishad and the APWD are interchangeable and as such if the appellants were allowed to continue with the recruitment process without giving any protection to the respondents/writ petitioners, the writ application filed by the respondents/writ petitioners will become infructuous. 21. The learned counsel for the respondents/petitioners submits that the appellants have filed the instant appeal challenging the interim order but the instant appeal is not maintainable. The learned counsel for the respondents relied upon the judgment reported in Shyam Sel and Power Limited and Another vs. Shyam Steel Industries Limited, (2023) 1 SCC 634 and submits that the Hon’ble Supreme Court held that the appeals before the Division Bench were against the exercise of discretion by the Single Judge. The learned counsel for the respondents relied upon the judgment reported in Shyam Sel and Power Limited and Another vs. Shyam Steel Industries Limited, (2023) 1 SCC 634 and submits that the Hon’ble Supreme Court held that the appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate Court will not interfere with the exercise of discretion of the court of the first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. 22. The learned counsel for the respondents submits that as the pleadings have been completed with regard to the writ petitions and this Court can direct the Hon’ble Single Judge to dispose of the writ petition as early as possible without interfering the impugned order. 23. Learned counsel for the respondents/writ petitioners submits that the memorandum dated 12th April, 2017 relied by the appellants is not applicable in the present proceeding and the post which now the appellants intends to fill up the same are lying vacant more than two years. 24. Heard learned counsel for the respective parties. Perused the materials on record and the impugned orders. 25. The respondents/petitioners have filed the writ petition claiming regularisation of their services as Junior Engineer in Zilla Parishad under the Directorate of RDI, Andaman and Nicobar Administration against the vacant sanctioned post of Junior Engineer. Taking into consideration of the prayer, their appointments on contractual basis and the length of service, initially the learned Single Judge has passed an order directing the appellants not to disturb the services of the respondents. The APWD has published the vacancy notice for filling up the various posts including the posts of Junior Engineer (Civil), Junior Engineer (Electrical & Mechanical) and Surveyor. The respondents/writ petitioners in MAT/10/2022 are claiming for regularisation in the post of Junior Engineer and the respondent/writ petitioner in MAT/9/2022 claiming for regularisation in the post of Surveyor. 26. Whether the services of the respondents/writ petitioners can be regularised or not is the subject matter in the writ application. The only question whether the interim order passed by the learned Single Judge wherein it was directed to keep 15 posts vacant can be interfered with or not. 26. Whether the services of the respondents/writ petitioners can be regularised or not is the subject matter in the writ application. The only question whether the interim order passed by the learned Single Judge wherein it was directed to keep 15 posts vacant can be interfered with or not. Admittedly the posts which have been advertised is of the APWD and the respondents/writ petitioners are claiming regularisation in the Zilla Parishad. The Zilla Parishad and the APWD are two entities. The respondents/writ petitioners are claiming that the posts in the Zilla Parishad and the APWD are interchangeable as per the administrative instructions or directions issued by the Administration from time to time. The appellants have denied the contentions of the respondents/writ petitioners. Whether the post of Junior Engineers in the Zilla Parisahd and the post of Junior Engineer in the APWD are interchangeable and is required to be decided on merit. In the appellate stage, it is not appropriate for this Court to decide the said issue as the writ petition is pending before the Hon’ble Single Judge. 27. Now the only question before this Court, whether, till the disposal of the writ application, the interim order can be allowed to continue or not. As per the office memorandum dated 12th April, 2017, if the vacant posts are not filled up or kept in abeyance for a period of more than two years, the same will be treated as ‘deemed abolished’. By keeping into consideration of the said memorandum, if this court will allow to continue with the interim order, there is every possibility that the two years will be passed and the posts will be declared as deemed abolished then again the Administration has to apply before the Ministry for exemption. 28. The order relied by the learned Single Judge passed in the case of Shajan T Oomen, in the said case, it is decided that the Lieutenant Governor cannot regulate the terms and conditions or service of any employee of the Local Self Government like Zilla Parishad. 29. The respondents/writ petitioners are working in the Zilla Parishad and there is already an order of injunction and the appellants submits that they are not going to disturb the respondents/writ petitioners. The question whether the services of the respondents/writ petitioners can be regularised, is the subject matter of the writ petition. 29. The respondents/writ petitioners are working in the Zilla Parishad and there is already an order of injunction and the appellants submits that they are not going to disturb the respondents/writ petitioners. The question whether the services of the respondents/writ petitioners can be regularised, is the subject matter of the writ petition. This Court is of the view that the impugned order passed by the learned Single Judge needs to be modified to the extent that instead of keeping the 15 posts vacant, the appellants shall continue with the recruitment process but the appointment of the 15 candidates in the post of Junior Engineer and one post of Surveyor shall abide by the result of the WPA/39/2022 and WPA/40/2022. The appellants are also directed in the order of appointment of the selected candidates, it should be specifically mentioned that their appointment shall be abide by the result of the WPA/39/2022 with respect to Junior Engineers and WPA/40/2022 with respect to Surveyor. 30. In view of the above, both the appeals being MAT/9/2022 and MAT/10/2022 and the interlocutory application, being CAN/1/2023 are disposed of, the hearing of the connected writ petitions be expedited. 31. Urgent photostate certified copy of this order, if applied for, be supplied to the learned counsel for the respective parties upon compliance of usual formalities.