Kailash Mishra vs The Union Of India Through Its ...
2021 Latest Caselaw 1320 Jhar

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                     W.P (S) No. 1611 of 2015

            Kailash Mishra                           ---        ---     Petitioner
                                              Versus
             1. The Union of India through its Secretary cum Director General, Department
                of Posts, Government of India, New Delhi
             2. The Chief Postmaster General, Jharkhand Circle, Ranchi
             3. The Senior Superintendent of Post Offices, Jamshedpur
             4. The Senior Post Master, Head Post Office, Jamshedpur
             5. The Director of Accounts (P), Department of Post, Patna
             6. The Central Administrative Tribunal, Patna Bench, Circuit Bench, Ranchi
                                                     ---        ---    Respondents
                                                ---

             CORAM:          Hon'ble Mr. Justice Aparesh Kumar Singh
                         Hon'ble Mrs. Justice Anubha Rawat Choudhary
                                 Through:     Video Conferencing
                                                ---
             For the Petitioner: Mr. Dilip Kr. Prasad, Advocate
             For the Respondent: Mr. Rajiv Sinha, A.S.G.I
                                         ---
11 / 16.03.2021     Heard learned counsel for the parties.
            2.     Applicant     / petitioner herein      approached   the   learned   Central

Administrative Tribunal, Patna Circuit Bench at Ranchi in O.A. No. 155/2013 [R] against the order of termination dated 29.06.2013. He also prayed for regularization of his services contending that he has been working since 1988 as a Coolie at Jamshedpur Head Post Office. Petitioner sought to place reliance upon a Circular enclosed as Annexure-6 and typed copy whereof has been enclosed as Annexure-6/A to the supplementary affidavit dated 31.07.2019. Petitioner contended that part time / full time casual labourers recruited even after 10.09.1993 and up to 12.11.1995 were entitled for grant of temporary status on satisfying other eligibility conditions.

3. Union of India responded to this letter vide supplementary counter affidavit dated 20.02.2021. On perusal of the letter dated 01.11.1995 at page-8 and corrigendum thereto at page-9 dated 08.11.1995, as also communication dated 21.11.1995 at page-10, issued by the Chief Post Master General, Bihar Circle, Patna, it is apparent that Annexure-6 and 6/A are not reliable documents. There is an apparent difference in the material part of the letter regarding the cut-off date. There are other discrepancies in the document at Annexure-6 and 6/A also relating to the date of judgment of O.A. No. 750/1994 and the date of letter is also different.

4. Learned ASGI has taken pains to point out that question of extending benefit of regularization scheme to the full time casual labourers who were

recruited after 29.11.1989 was considered by the Department of Posts in the light of the judgment of Central Administrative Tribunal, Ernakulum Bench delivered on 13.03.1995 in O.A. No. 750/1994. It was decided that full time casual labourers recruited after 29.11.1989 and up to 01.09.1993 may also be considered for the grant of benefits under the scheme. Petitioner's claim for regularization on the basis of such scheme based on the plea that he was engaged on temporary Assistant Generator Operator from 01.04.1994, is therefore untenable on facts.

5. A perusal of letter of engagement dated 13.04.1994 (Annexure-3), relied upon by the petitioner, makes it further clear that the petitioner was engaged as contingent paid staff in place of one Rabindra Kumar Bhuiyan in his absence as an Assistant Generator Operator. The work of Assistant General Operator was purely provisional and could be terminated any time without prior notice. Union of India has taken categorical plea that the petitioner was not engaged on any sanctioned post. Therefore, such an engagement cannot be regularized even as per the ratio laid down by the Apex Court in the case of State of Karnataka Versus Uma Devi [(2006) 4 SCC 1, para-53]. Only irregular appointment made against the sanctioned post could be regularized given the tenure of engagement for ten years or more, but not illegal appointment.

6. Petitioner continues to be under engagement only by virtue of an interim order dated 20.11.2013 passed in the Original Application (Annexure-24) and continued by virtue of an interim order dated 07.01.2016 passed by a Coordinate Bench of this Court. However, his continued engagement till date does not confer a legal right for regularization in the absence of a scheme. Moreover, petitioner has not been able to show that he has been engaged against a sanctioned post and was duly qualified for appointment against such post. Learned counsel for the petitioner has laboured to impress this Court that non-regularization of the services of the petitioner despite his engagement since 1988 as a Coolie and since 13.04.1994 as an Assistant Generator Operator on contingent post, till date, could be harsh and arbitrary. However, we are constrained to observe that in absence of any legal right for regularization under a proper scheme framed by the Respondent Department, no writ of mandamus or direction can be issued. Learned Tribunal has considered the plea of regularization raised by the petitioner in the light of the judgment of the Apex Court rendered in the case of Uma Devi (Supra) and has rightly held that since the appointment of the applicant was not under recruitment process, no

right accrues in his favour. His services were purely temporary and by way of stop gap engagement. Therefore, no right flows out of that. We do not find any error in the order of the learned Tribunal. Accordingly, writ petition being devoid of merit, is dismissed. Interim order dated 07.01.2016 stands vacated.

(Aparesh Kumar Singh, J)

(Anubha Rawat Choudhary, J) Ranjeet/