Debabrata Das vs The Indian Statistical Institute ...
2023 Latest Caselaw 3405 Cal

Item no. 13


               IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                               APPELLATE SIDE
Present:
The Hon'ble Justice Hiranmay Bhattacharyya

                              W.P.A. 15276 of 2021

                                Debabrata Das
                                     vs.
                     The Indian Statistical Institute & Ors.

Appearance:
For the Petitioner        :    Mr. Raghunath Chakraborty
                               Ms. Sibangi Chattopadhyay

For the respondent        :    Mr. Debapriya Gupta

Mr. Sourav Mondal

Heard on : 16.05.2023

Judgment on : 16.05.2023

Hiranmay Bhattacharyya, J.:

01. The petitioner claims to have been appointed as Electrical Engineer

on November 6, 2007 on temporary basis (adhoc). The petitioner

further claims that such appointment, which was initially for a

period of one year, was extended from time to time and the

petitioner is still performing his duties as an Electrical Engineer

under Indian Statistical Institute (for short "the said Institute").

Pursuant to an advertisement dated June 30, 2021 inviting

applications from eligible persons for recruitment to several posts

including the vacant posts in Engineering Assistant (Electrical), he

applied for the said post.

02. The petitioner approached this Court with a prayer to allow him to

sit in the examination by relaxing the age bar as provided in the

employment notification since the petitioner apprehended that he

would not be allowed to sit in the said examination. A prayer for

regularisation of the service of the petitioner in the Institute as

Electrical Engineer Assistant was also made.

03. Mr. Chakraborty, learned advocate appearing for the petitioner

submits that during the pendency of the writ petition the

examination was held and the petitioner appeared in the said

examination. He submits that the petitioner was not considered

for appointment to the said post by the Institute only on the

ground that the petitioner was over aged. He further submits that

even assuming though not admitting that the petitioner could not

be considered for such appointment in view of the age bar,

however, taking into consideration the fact that the petitioner was

appointed on temporary basis by following the recruitment

procedure i.e. by holding interview of the candidates who applied

for the post in terms of the notification, which was published in the

Bengali daily the Ananda Bazar Patrika on January 23, 2007 and

also that he is working as Electrical Engineer since November 2007

the appointment of the petitioner should have been regularised.

He submits that since a large number of contractual employees are

still working, the Institute ought to have framed a scheme for the

purpose of regularization of the temporary/casual/adhoc workers

in terms of the directions passed by the Hon'ble Supreme Court in

the case of Secretary, State of Karnataka & Ors. vs. Uma Devi

(3) & Ors. reported in (2006) 4 SCC. He further submits that the

Hon'ble Division Bench of this Court in MAT 352 of 2022

(Madhusudan Pramanick vs. Chief Executive Officer

(Administration & Finance), Indian Statistical Institute) has

held that the authorities have the power to condone the age bar.

He also refers to an unreported decision of the Hon'ble Supreme

Court in the case of University of Delhi vs. Delhi University

Contract Employees Union & Ors. passed in Civil Appeal

No.1007 of 2021 on March 25, 2021 and submits that the

petitioner having performed his duties for a sufficiently long period

of time and having acquired considerable experience for performing

the duties of Assistant Electrical Engineer, the authority ought to

have granted proper weightage for his experience while considering

the candidature of the petitioner at time of finalizing the list of

candidates pursuant to the employment notification dated June

30, 2021.

04. Per contra Mr. Gupta, learned advocate representing the Institute

submits that the writ petitioner was allowed to participate in the

said examination and that the petitioner could not come within the

zone of consideration for appointment to the post in question. He

further submits that a temporary/casual/adhoc employee cannot

claim any right to be regularized in a permanent post.

05. Heard the learned advocates for the parties and perused the

materials placed.

06. Prayer (a) of the writ petition wherein the writ petitioner prayed for

allowing him to apply for the post and to sit for the examination at

the present point of time has become redundant in view of the fact

that pursuant to the application submitted by the petitioner for

appointment to the post of Assistant Electrical Engineer, he was

allowed to sit for the said examination. That apart the candidature

of the petitioner does not also appear to have been rejected on the

ground that he was over aged. Therefore, the decision of the

Hon'ble Division Bench in MAT 352 of 2022 is of no assistance to

the petitioner in this case.

07. The petitioner sat for the written test but was not allowed to

participate in the skill test as he could not achieve the requisite

benchmark for participating in the skill test. Mr. Chakraborty, by

placing reliance upon the decision of the Hon'ble Supreme Court in

the case of University of Delhi (supra), would contend that the

authority ought to have given proper weightage to the contractual

employees who participated in the said examination including the

petitioner by taking into consideration the experience of working at

the Institute. After going through the said decision of the Hon'ble

Supreme Court this Court finds that the Hon'ble Supreme Court

after taking into consideration the stand of the respondent

authority in paragraph 6 and 7 of the affidavit filed in that matter

passed the following direction.

"We, therefore, direct that all the concerned contract

employees engaged by the University be afforded benefits as

detailed in paragraphs 6 and 7 of the affidavit dated

09.03.2021 with following modifications :

a) The benefit of age relaxation as contemplated in paragraph 6

of the affidavit without any qualification must be extended to

all the contract employees.

b) In modification of paragraph 7 of the affidavit, those

employees who were engaged in the year 2011 be given the

benefit of 10 marks in the ensuing selection process while for

every additional year that a contract employee had put in,

benefit of one more mark subject to the ceiling of 8 additional

marks be given. In other words, if a contract employee was

engaged for the first time in the year 2010, he shall be entitled

to the benefit of 11 marks, while one engaged since 2003 shall

be given 18 marks, as against the appointee of 2011 who will

have the advantage of only 10 marks. The contract

appointees of 2012 and 2013 will have the advantage of 9

and 8 marks respectively.

c) The Public Notice inviting applications from the candidates

shall specifically state that the advantage in terms of the order

passed by this Court would be conferred upon the contract

employees so that other candidates are put to adequate

notice.

d) All the contract employees shall be entitled to offer their

candidature for the ensuing selection in next four weeks and

in order to give them sufficient time to prepare, the test shall

be undertaken only after three months of the receipt of

applications from the candidates.

14. We hasten to add that these directions are premised on two

basic submissions advanced by Mr. Santosh Kumar, learned

advocate for the University that;

(i) the total marks for the test will be 300 marks and thus the

maximum advantage which a contract employee will have is of

18 marks which in turn is relatable to advantage of 6% as

against other participants in the selection process;

(ii) all the contract employees are otherwise entitled and eligible to

participate in the selection process.

15. In our view, paragraphs 6 & 7 of the affidavit with the

modifications as directed hereinabove will subserve the

purpose. Such directions will not only afford chance to the

contract employees to participate in the selection process

regardless of their age but will also entitle them to some

advantage over the other participants. Similarly, those

contract employees who have put in more number of years as

against the other contract employees, will also have a

comparative advantage."

08. The Hon'ble Supreme Court directed weightage to be given in view

of the specific stand taken by the authorities in the affidavit in that

regard. In the said decision, the University in paragraph 7 of its

affidavit placed on record its decision to the effect that a maximum

of upto 10 extra marks depending on the number of years of

service of the contract employees would be given to them while

finalizing the merit. The facts of the said case is distinguishable

from the facts of the case on hand. This Court is, therefore, of the

considered view that no direction can be passed upon the authority

to consider the candidature of the petitioner by giving due

weightage to the experience of the petitioner for performing his

duties as an Assistant Electrical Engineer as the same would

amount to modifying the criteria for selection by the Court which

the Court cannot.

09. This Court, therefore, holds that the petitioner failed to make out a

case for issuance of a direction upon the Institute to consider his

candidature for appointment to the post of Assistant Electrical

Engineer.

10. Now this Court is to consider whether the petitioner having

performed his duties in the jobs of electrical engineering on

temporary basis has a right to be be regularized in the permanent

post of Assistant Electrical Engineer under the said Institute. In

order to decide the said issue it would be profitable to take note of

the decision of the Hon'ble Supreme Court in the case of Uma Devi

(3) (supra) wherein it has been held that a mandamus could not be

issued in favour of the employees directing the government or its

instrumentality to make them permanent since the employees

cannot show that they have enforceable legal right to be

permanently absorved or that the State or its instrumentality has a

legal duty to make them permanent. The Hon'ble Supreme Court

in paragraph 52 of the said judgment held as follows :

"Normally, what is sought for by such temporary

employees when they approach the court, is the issue of

a writ of mandamus directing the employer, the State or

its instrumentalities, to absorb them in permanent service

or to allow them to continue. In this context, the question

arises whether a mandamus could be issued in favour of

such persons. At this juncture it will be proper to refer to

the decision of the Constitutional Bench of this Court in

Rai Shivendra Bahadur (Dr.) v. Governing Body of the

Nalanda College. The case arose out of a refusal to

promote the writ petitioner therein as the Principal of a

college. This Court held that in order that a mandamus

may issue to compel the authorities to do something, it

must be shown that the statute imposes a legal duty on

the authority and the aggrieved party had a legal right

under the statute or rule to enforce it. This classical

position continues and a mandamus could not be issued

in favour of the employees directing the Government to

make them permanent since the employees cannot show

that they have an enforceable legal right to be

permanently absorved or that the State has a legal duty

to make them permanent."

This Court therefore holds that the petitioner, who is working as a

temporary employee, does not have any legal right to be absorbed

in a permanent post. Therefore, no mandamus can be issued

directing the Institute to make him permanent.

11. Mr. Chakraborty would vehemently contend that that a direction

should be passed upon the Institute to frame a scheme for

regularizing the temporary employees as a one time measure as

directed by the Hon'ble Supreme Court in Uma Devi (3) (supra). In

order to consider such contention of Mr. Chakraborty it would be

relevant to take note of paragraph 53 of the said report which runs

thus

"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 the courts or of tribunals and should

further ensure that regular recruitment is 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 sub

judice, need not be reopened based on this judgment, but

there should be no further bypassing of the constitutional

requirement and regularizing or making permanent, those

not duly appointed as per the constitution scheme."

12. After going through the paragraph 53 of the said decision

this Court is of the considered view that the Hon'ble

Supreme Court after considering the fact that there may be

cases where irregular appointment of duly qualified persons

in duly sanctioned vacant post have been made and they

have continued to work for 10 years or more but without

intervention of the orders of the courts or tribunals directed

the Government to regularise the service of such employees

who have been irregularly appointed. Mr. Chakraborty could

not satisfy this Court that the petitioner was appointed in a

duly sanctioned post. Therefore, the petitioner cannot take

the advantage of the observations made by the Hon'ble

supreme Court in the first part of paragraph 53 of the said

reports. Mr. Chakraborty would contend that a direction be

passed upon the authorities to frame a scheme for

regularizing the temporary/contractual/adhoc employees as

one-time measure as directed by the Hon'ble Supreme Court

in paragraph 53 of the said judgment. Such contention of

Mr. Chakraborty cannot be accepted for the following

reasons.

13. It is now well settled that the use of the expression "one time

measure" used in paragraph 53 of Uma Devi (3) (supra)

would apply to cases of such irregularly appointed employees

who have put in more than 10 years of continuous service

without availing the protection of any interim order of courts

or tribunals before the date of decision of Uma Devi (3)

(supra). Petitioner was appointed by the Institute after the

decision on Uma Devi (3) (supra) was delivered on April 10,

2006. It would be relevant to point out here that the

appointment of the petitioner on temporary post was made

vide office order dated November 6, 2007 and also that the

petitioner accepted such appointment with his eyes wide

open. That apart no mandamus can be issued by the Court

directing the authorities to frame a policy/scheme for

absorption or for regularization of the

temporary/contractual/adhoc employees.

14. For all the reasons as aforesaid, this Court is not inclined to

grant any relief in favour of the writ petitioner. The writ

petition accordingly stands dismissed without, however, any

order as to costs.

15. Urgent Photostat certified copy of this order, if applied for, be

delivered to the learned advocates for the parties, upon

compliance of all formalities.

(Hiranmay Bhattacharyya, J.) Raja A.R. (Ct.)