Calcutta High Court (Appellete Side)

Md. Hadiujjaman vs The State Of West Bengal & Ors on 20 April, 2023

 20.04.2023
Sl. No.164(ML)
    srm
                                  W.P.A. No. 16451 of 2022

                                      Md. Hadiujjaman

                                            Versus

                              The State of West Bengal & Ors.



                        Mr. Partha Sarati Das,
                        Md. Hafiz Ali,
                        Ms. Shanta Sarkar
                                                         ....for the Petitioner.

                        Mr. Manoj Malhotra,
                        Mr. Suman Dey
                                                 ...for the State-respondents.

Mr. Sarbananda Sanyal, Mr. Soumy Basu Roy Chaudhuri, Mrs. Poulam Basu Roy Chadhuri ...for the Respondent Nos.7 to 10.

Affidavit-of-service is taken on record.

The petitioner prays for regularization in the post of

a panchayat karmee. The petitioner contends that he had

been working as a casual worker since 1996 in Giria Gram

Panchayat, Murshidabad. It is contended that such

prolonged service, entitled the petitioner to be regularized.

The petitioner filed a writ petition being WP

No.17079(W) of 2002, claiming regularization. The writ

petition was disposed of on March 20, 2003 by a coordinate

bench, inter alia, directing the authorities to allow the

petitioner to participate in any selection process that may

take place for recruitment of gram panchayat karmees, by

condoning the age bar.

The petitioner submits that on the basis of the

aforementioned direction of this Court, he once again

approached the Pradhan, Giria Gram Panchayat. The

Pradhan issued a letter indicating that the petitioner's

prayer would be considered when the vacancies were

sought to be filled up in terms of the rules and regulations.

The petitioner submits that he was never informed

as to whether any recruitment process had been initiated

thereafter, for appointment of gram panchayat karmee.

However, on the strength of the long service of the

petitioner as a casual worker, the petitioner once again

seeks regularization.

Regularization as a mode of appointment has

always been deprecated by the courts. Regularization is

violative of Articles 14 and 16 of the Constitution of India.

Reference is made to the decision of Secretary, State

of Karnataka vs. Uma Devi (3) reported in 2006(4) SCC 1.

The Apex Court observed that adherence to Articles 14 and

16 of the Constitution was a must in the process of public

employment. The plea that ad hoc appointees working for

long, should be considered for regularization was rejected.

The Court held that such a course would encourage the

State to flout its own rules and confer undue benefits on

some, at the cost of many waiting to compete.

The only exception that had been made by the Apex

Court was in paragraph 53 of the said judgment. The said

paragraph is quoted below:-

"One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore vs. S.V. Narayanappa, (1967) 1 SCR 128, R.N. Nanjundappa Vs. T. Thimmiah, (1972) 1 SCC 409, and B.N. Nagarajan vs. State of Karnataka, (1979) 4 SCC 507, 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. 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."

Their Lordships directed that all departments in

which casual or temporary employees had been

discharging their duties for ten years or more, against

sanctioned vacant posts and not on the basis of any interim

order or protection granted by courts or tribunals, were

entitled to be regularized as a onetime measure. A

direction was given to the departments to prepare a

scheme for onetime regularization of such employees.

The learned co-ordinate Bench of this Court while

disposing of the writ petition being WP No.17079(W) of

2002, found that the petitioner was engaged as a casual

worker but not against any sanctioned post.

Thus, in my view, the protection of paragraph 53 of

Uma Devi (supra) is not be available to the petitioner.

In the decision of State of Karnataka vs. M. L.

Kesari and others reported in (2010) 9 SCC 247,

the Hon'ble Apex Court also held that in case engagements

had been made on casual or temporary basis, but against

sanctioned posts, a one-time measure should be adopted

for regularization of such employees. The relevant

paragraph is quoted below:-

"7. It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi (3) [(2006) 4 SCC 1] , 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. 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."

The Apex Court in the case of National

Fertilizers Ltd. and Others vs. Somvir Singh

reported in (2006) 5 SCC 493, held as follows:-

"20. The Constitution Bench opined that any appointment made in violation of the Recruitment Rules as also in violation of Articles 14 and 16 of the Constitution would be nullity. The contention raised on behalf of the employees that those temporary or ad hoc employees who had continued for a fairly long spell, the authorities must consider their cases for regularisation was answered, thus: [Umadevi (3) Case (supra), SCC p.29, para 26] "26. With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts?

This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -- the distinction between regularization and making permanent, was not emphasized here -- can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in paragraph 50 of State of Haryana v. Piara Singh: (1992) 4 SCC 118 are to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said

that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent."

21. It was furthermore opined: [Umadevi (3) Case (supra), SCC p.32, para 33] "33. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency an ad hoc appointment can be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularization. The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment."

22. Taking note of some recent decisions of this Court, it was held that the State does not enjoy a power to make appointments in terms of Article 162 of the Constitution of India. It further quoted with approval a decision of this Court in Union Public Service Commission v. Girish Jayanti Lal Vaghela:(2006) 2 SCC 482 in the following terms: (SCC p. 490, para 12) "The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution."

In M.P. State Coop. Bank Ltd., Bhopal vs.

Nanuram Yadav & ors. reported in (2007) 8 SCC

264, the Hon'ble Apex Court held as follow:-

"(1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India. (2) Regularisation cannot be a mode of appointment.

(3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. (4) Those who come by back-door should go through that door."

In State of Orissa & Anr. v. Mamata

Mohanty reported in (2011) 3 SCC 436, the Hon'ble

Apex Court held as follows:-

"Therefore, it is a settled legal proposition that no persons can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit."

The petitioner has also not been able to satisfy the

Court that he had ever sought to participate in any

recruitment process since 2003, pursuant to the liberty

granted by this court. There are no documents in proof of

the fact that the petitioner had been continued as a casual

employee, except a few certificates issued by the Pradhan,

lastly on January 2, 2009. The petition has been filed in

2022.

It appears that sometime in 2006, the Block

Development Officer, Raghunathganj-II Development

Block, asked the petitioner to appear with all relevant

documents. There is nothing on record to show whether