Binoy Mahato vs State of West Bengal and Others

Ashim Kumar Banerjee, J.—Appellant was registered with the local Employment Exchange in the District of Purulia. The District Judge, Purulia initiated recruitment process in terms of the circular dated October 31, 2002 wherein the District Judge was permitted to appoint Group-D staff on contractual basis following the regular recruitment rule. The appellant would contend, the said guideline dated October 31, 2002 had the approval of the Cabinet Committee appointed for the purpose. The local Employment Exchange recommended his name to the District Judge along with other eligible candidates. The District Judge held a regular recruitment process wherein the appellant became successful in getting the appointment. It was initially for one year. The letter of appointment categorically mentioned, the appointment would be purely temporary and contract basis that would have no claim for regular absorption. The appellant duly joined the post and continued in employment. When he claimed for regularization the Authority informed him that his prayer could not be acceded to as he was not recruited through recruitment process published and circulated in print media. The appellant claimed, a similar problem arose in Presidency Small Causes Court where the Government regularized the service given on contract basis. The appellant also claimed, in the Judgeship of Bankura one Aloke Nath Adhya was regularized being similarly circumstanced with the appellant. The District Judge vide letter dated January 22, 2008 addressed to the Principal Secretary, Judicial Department, Government of West Bengal recommended the case of the appellant along with others. However, the Judicial Secretary did not adhere to the request made by the District Judge. The Judicial Secretary asked for clarification. The learned District Judge, Purulia clarified the issue by giving the detailed process of recruitment that was undertaken. In this backdrop, the appellant filed a writ petition that the learned Single Judge dismissed following the decision in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, The judgment and order dated October 19, 2012 passed by the learned Single Judge became the subject-matter of the present appeal.

Mr. Asoke De, learned Senior Counsel appearing for the appellant contended, learned Single Judge erroneously applied the ratio in the case of Secretary, State of Karnataka (supra), without appreciating the ultimate decision of the Apex Court so observed in paragraph-53 of the said decision. According to him, the circumstances under which the casual appointments were deprecated, would be conspicuously absent in the present case as the present process had been undertaken following strictly the guidelines of the State particularly the Memo dated October 31, 2002. The Employment Exchange recommended the appellant who participated in the regular recruitment process and became successful in getting the appointment.

Mr. Dey on instruction would submit, the District Judge, Purulia asked him to deposit the Employment Exchange Card so that he could not be considered for any future employment. The appellant thus was deprived of being considered in any regular appointment for which he should not be held responsible. Mr. Dey would further contend, the appellant in the process lost his seniority in the Employment Exchange. He also crossed the age eligibility bar for any public appointment. Hence, the learned Judge should have considered those special features before rejecting the application. He relied on a Single Bench decision of one of us (Ashim Kumar Banerjee, J.) in the case of Dhananjoy Sharma v. State of West Bengal and others, 2003 Vol-I Calcutta H.C. Notes 385. as also the decision in the case of Japan Kumar Mondal v. State of West Bengal and others. 2005 Vol-I Calcutta H.C. Notes 351. He also relied upon an unreported decision of the learned Single Judge of this Court in W.P. No. 15547 (w) of 2003 in this regard.

Per contra, Mr. Alok Kumar Ghosh, learned Counsel, appearing for the High Court administration contended, the letter of appointment would categorically make it clear, the job was on contract basis and would have no claim for regularization whatsoever. He relied on the following decisions to support his proposition:

Secretary, State of Karnataka and Others Vs. Umadevi and Others,

Official Liquidator Vs. Dayanand and Others,

Union of India (UOI) and Another Vs. Arulmozhi Iniarasu and Others,

Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and Others,

State of Rajasthan and Others Vs. Daya Lal and Others,

State of Kerala and Others Vs. K. Prasad and Another,

State of Madhya Pradesh and Others Vs. Yogesh Chandra Dubey and Others,

OUR VIEW:

Casual and/or contractual appointment could not be regularized as it would offend Articles 14 and 16 of the Constitution of India.

The Apex Court in the case of Umadevi (3) (supra) categorically deprecated casual and/or contractual appointments in regular post in public employment. While doing so, the Apex Court appreciated the difficulty that might be faced by the public offices as also the people who were working for decades in regular posts through irregular process of appointment. The Apex Court asked the Authorities to take up one time measure to absorb them. Paragraph-53 being relevant herein is quoted below:

One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 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 the 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 abovereferred 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 regularise 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 recruitments are undertaken to fill these 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 regularising or making permanent, those not duly appointed as per the constitutional scheme.

The Apex Court in paragraph-54 overruled the earlier decisions to the contrary. The decisions cited at the Bar on behalf of the appellant were rendered well before the decision of the Apex Court in Umadevi (3) (supra). The decision in the case of Dhananjoy Sharma (supra) could not have any application as it was rendered in a case of a Bus Permit and not any public employment. Even if it was so, that would stand overruled in view of the Apex Court decision referred to above.

After the decision in the case of Umadevi (3) (supra), confusion arose in view of Two Bench decision in the case of U.P. State Electricity Board Vs. Pooran Chandra Pandey and Others, . wherein a different view was expressed. The Apex Court subsequently clarified, the decision rendered in Umadevi (3) (supra), would be holding the field. The subsequent decision cited by Mr. Ghosh on behalf of the administration would strongly support the proposition of law that would deprecate the issue of regularization of casual/contractual employees.

Articles 14 and 16 of the Constitution of India would oblige the State to give opportunity to all eligible candidates for a public post. For any regular public post the Government was thus not entitled to go for any discrete mode of process of appointment that would deny opportunity to the eligible candidates. Once a public post was being filled up the Authority must follow the statutory rules applicable for such recruitment process. In the decision in the case of Excise Superintendent Malkapatnam, Krishna District (supra), the Apex Court held, in absence of a recruitment rule the Authority must go for wide publicity. In the instant case, sponsoring of candidates through Employment Exchange was regarded as a legal mode of recruitment during the period when the appellant was considered for employment.

All decisions rendered prior to the decision in the case of Umadevi (3) (supra), delivered on April 10, 2006 would stand overruled. The said decision is still holding the field and the learned Judge rightly applied so. Only distinguishing feature we would find, in the instant case, the appellant was considered along with others recommended through the Employment Exchange that was considered to be one of the modes. Fact that the District Judge compelled him. to deposit the Employment Exchange Card, would make his claim much stronger as he could not get any opportunity to be considered for a regular employment through Employment Exchange, afterwards. At the same time, he knew, he was in a contractual appointment. He knew, he could not have any valid claim for regularization.

The State did not file any affidavit, at least we do not find anyone. The affidavit filed by the Registrar did not make the position clear as to under what circumstance Aloke Nath Adhya could be considered for regular employment, so were the employees of the Presidential Small Causes Court. The Government in their wisdom regularized those employees. They should also examine the case of the appellant as to whether he could have the same treatment as a one-time measure. The decision in the case of Umadevi (3) (supra), would squarely bind us. We cannot give any mandate to the Government. Even if the Government accommodated Aloke Nath Adhya or anyone else de hors the ratio decided in Umadevi (3) (supra), we cannot ask them to repeat such illegality. We would only hope and trust, the Government would definitely re-examine the whole issue as to whether facts would permit them to apply the guideline of the Apex Court rendered in paragraph-53 quoted above. The correspondence annexed to the pleadings would reveal, the District Judge, Purulia as well as the High Court administration were sympathetic to the appellant and his colleagues being similarly circumstanced. The Government however did not accede to the request. At this juncture, we are unable to extend any special blessings and/or mandate save and except hoping, good sense would prevail upon the Government who would sympathetically re-examine the case. Appeal is disposed of accordingly without any order as to costs.

Urgent certified copy of this judgment, if applied for, be given to the parties on their usual undertaking.

Ashoke Kumar Dasadhikari, J.

I agree.