Calcutta High Court (Appellete Side)
Shri Tushar Kanti Satpathi vs Union Of India & Others on 17 November, 2021
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
And
The Hon'ble Justice Jay Sengupta
W.P.C.T. No.103 of 2014
Shri Tushar Kanti Satpathi
Vs.
Union of India & others
For the petitioner : Mr. S.K. Datta,
Mr. Barun Chatterjee
For the respondents : Mr. Alok Kumar Banerjee,
Mr. Arijit Majumder
Hearing concluded on : 01.10.2021
Judgment on : 17.11.2021
Sabyasachi Bhattacharyya, J.:-
1. The brief facts of the case are as follows:
2. The writ petitioner was appointed as Engineer and Ship Surveyor on a
temporary basis with effect from February 16, 1999 till the date on
which the UPSC-selected candidate would join duty. He continued in
such service without any break till December 31, 2002. Thereafter,
there were artificial breaks, mostly of one/two days, totalling 21 days in
number, till the petitioner attained the age of superannuation on August
13, 2011.
3. It is relevant to mention that the petitioner had completed 10 years'
service prior to December 14, 2009, when the Tribunal below passed an
order in connection with OA 77/AN/2009, directing the review by the
respondent-authorities of the Recruitment Rules (R/R) of 2003,which
was admittedly defective, allowing the petitioner to continue in service
till the date of his superannuation on August 13, 2011 and further
directing the respondents to consider sympathetically the regularisation
of the petitioner in his service as per the old R/R.
4. The 2003 Recruitment Rules were substantially amended in 2010.
5. Subsequently, the petitioner filed OA 12/AN/2010 with MA
43/AN/2010, which were disposed of by the Central Administrative
Tribunal (CAT) vide order dated October 1, 2010, thereby directing the
respondents to release the salary of the petitioner and to take decision
about the status and position of the petitioner so that he was not
deprived of his retirement dues after serving for more than 12 years.
6. On July 18, 2011, a co-ordinate bench of this Court dismissed W.P.C.T.
No.1125 of 2011, thereby affirming the Tribunal's order dated October 1,
2010.
7. On June 21, 2011, the Tribunal modified its previous order and directed
that the UPSC and DOP & T be consulted and also extended the time for
the consideration regarding the petitioner for a further period of six
months.
8. However, by an order dated January 4, 2013, the Ministry of Shipping
refused the petitioner's request for regularization, which was affirmed by
the Tribunal, dismissing OA No.225 of 2013, filed by the petitioner, by
its order dated March 13, 2014. Such order of the Tribunal dated March
13, 2014 is the subject-matter of challenge in the present writ petition.
9. Upon hearing learned counsel for both sides, the Court arrives at the
following decision:
10. The cases germane for consideration in this case are:
(i) Secretary, State of Karnataka and others Vs. Uma Devi (3) and
others [(2003) 4 SCC 1];
(ii) State of Karnataka and others Vs. M.L. Kesari and others [(2010) 9
SCC 247].
11. In Uma Devi's case (supra), the Supreme Court held, inter alia, that a
mandamus could not be issued in favour of the temporary employees
directing the Government to make them permanent, since the
employees cannot show that they have an enforceable legal right to be
permanently absorbed or that the State has a legal duty to make them
permanent.
12. In M.L. Kesari (supra), the Supreme Court highlighted the exceptions
drawn between illegal and irregular appointments, as discussed in
paragraph no.53 of Uma Devi (supra).
13. According to the said paragraph, as reiterated in M.L. Kesari (supra), an
appointment is "irregular" and not "illegal" if the following conditions
are fulfilled:
(i) The employee concerned should have worked for 10 years or
more in a 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. 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. In the present case, the Tribunal proceeded on a fundamental
misconception of law in holding that the petitioner was governed by the
2003 R/R and that the 2010 R/R could not be made applicable by
giving retrospective effect, by overlooking the fact that the relevant
juncture for ascertaining such question was the date of initial
appointment of the petitioner. The petitioner was appointed with effect
from February 16, 1999, when the R/R of 1987 was still in force. The
petitioner was fully eligible for the post and had the requisite
qualification and experience as per the 1987 R/R at the said juncture
when he was first appointed on temporary basis.
15. Moreover, the petitioner was appointed against a sanctioned post,
although without undergoing the process of open competitive selection.
16. That apart, the writ petitioner had already worked for 10 years on
December 14, 2009, when the CAT first requested the respondent-
authorities to consider sympathetically the regularization of the
petitioner in his post as per the old recruitment rules in connection
with OA 77/AN/2009. The petitioner continued in service thereafter
under the directions of the Tribunal till the date of his superannuation.
However, the respondents have failed to establish by any cogent
material that the advertisements issued publicly for filling up the said
vacant post met with success even during the period between December
14, 2009 and August 13, 2011. As such, strictly speaking, the
continuation in service of the petitioner till the age of superannuation,
although on ad hoc basis, was not merely with the benefit or protection
of the order of the Tribunal but also on its independent footing, since
the sanctioned post could not be filled up by the authorities.
17. The striking feature in the present case is that, admittedly, the
respondents made several efforts to fill up the sanctioned posts,
including the one in which the petitioner was functioning, on ad hoc
basis, but all the advertisements met with failure, since none having
the requisite qualification could be appointed. As such, the
respondents did not show charity to the petitioner by continuing his ad
hoc appointment but voluntarily did so, having no other option since
the posts could not be filled up by open competitive selection even after
several publications being made, inviting applications in that regard.
18. Hence, not only does the petitioner's appointment meet the conditions
of "irregular", as opposed to "illegal", appointment, the petitioner was
on even better footing than anirregular appointee, since the extension
of the ad hoc appointment of the petitioner over the entire period of his
service of 12 (twelve) years was the only option left before the
respondent-authorities in view of the fact that the regular post where
the petitioner was working could not be filled up by open competitive
selection despite repeated advertisements. Hence, the continuation of
the petitioner in such appointment was the only option left to the
respondents, who rendered invaluable service by discharging public
duties on behalf of the State.
19. In view of the petitioner being eligible both under the 1987 and 2010
R/Rs, there is absolutely no reason why the petitioner should not get
the benefit of the doctrine of 'equal pay for equal work' not only in
respect of his monthly salaries but also with regard to other benefits
associated with permanent appointment as well.
20. The petitioner, in fact and for all practical purposes, discharged the
functions of a regular appointee against a sanctioned post for more
than 12 years and the right to equality of the petitioner, guaranteed by
Article 14 of the Constitution of India, would be squarely violated in the
event when the petitioner is refused to be treated on an equal footing
with regular employees.
21. The total number of breaks over the entire period of 12 years was
merely 21 days and such artificial breaks were, on their face, given by
the respondent-authorities merely to deprive the petitioner of the
benefits of regular appointment, despite having exploited the petitioner
fully and extracting the work of a regular employee from the petitioner
for a period of 12 years. Such "breaks" are, at the most, illusory in
nature and cannot be deemed to be sufficient to vitiate the petitioner's
claim for regularization or being treated at par with regular employees.
22. In such view of the matter, the petitioner not only met all the conditions
stipulated by the Supreme Court in the cited judgments, as discussed
above, for coming within the bracket of "irregular", is opposed to
"illegal", appointee, but stands on a stronger footing since the
appointment could not be labelled even as "irregular" since the
extension of his ad hoc appointment was the only option left before the
respondent authorities throughout the relevant period due to the failure
of the respondents to fill up the vacant sanctioned post, where the
petitioner was working, even after several efforts at open competition by
inviting employees through publication.
23. Thus, the respondent-authorities as well as the Tribunal refused to
exercise jurisdiction vested in them by law and by virtue of Article 14 of
the Constitution of India in refusing to absorb the petitioner as a
regular employee from his date of first appointment, that is, February
16, 1999 till his superannuation on August 13, 2011.
24. Accordingly, W.P.C.T. No.103 of 2014 is allowed, thereby setting aside
the impugned order dated March 13, 2014 passed by the Central
Administrative Tribunal, Kolkata Bench, in OA No.225 of 2013 as well
as the decision taken by the Ministry of Shipping vide their letter dated
January 4, 2013. The respondents shall treat the writ petitioner to
have been regularized in his service for the entire period between
February 16, 1999 and August 13, 2011 and shall disburse all benefits
in accordance with the rules governing regular employees in favour of
the petitioner at the earliest. The entire exercise of regularization and
regularization with retrospective effect for the period indicated above, as
well as disbursal of all benefits due to the petitioner at par with regular
employees in the post-in-question, shall be completed as expeditiously
as possible, preferably within two (02) months from this date.
25. There will be no order as to costs.
26. Urgent certified server copies shall be supplied to the applying parties,
subject to due compliance with the necessary requisites.
(Sabyasachi Bhattacharyya, J.)
I agree.
(Jay Sengupta, J.)
