Shri. Lalit Kumar Ekka vs The Lieutenant Governor and Others

Prasenjit Mandal, J.—These three applications are disposed of by this common judgement and as the common question of law is involved therein. For convenience, the W.P. No. 1301 of 2010 is taken up for decision first.

W.P. 1301 of 2010

The writ petitioner herein was appointed as Daily Rated Mazdoor by the Secretary, Municipal Council, Port Blair. The petitioner was then appointed as Sanitary Mazdoor with effect from January 06, 2000. He possesses the requisite qualification for being appointed to the post of Sanitary Inspector. As per executive instruction issued by the Assistant Secretary (LSG), Andaman and Nicobar Islands, the Port Blair Municipal Council is to follow the government Recruitment Rules for the post of which similar to posts in government department under the Administration. In 2008, the petitioner preferred a writ application being WP No. 78 of 2008 for appointment to the post of Sanitary Inspector. The said writ application was disposed of directing the Administration to consider the candidature of the writ petitioner for the said posts of Sanitary Inspector. Several litigations with regard to the promotion to the posts of Sanitary Inspector were held. In another writ petition being W.P. No. 1210 of 2010, this Hon''ble Court, Circuit Bench directed the Administration to consider the case of the petitioner on 19.8.2010. Pursuant to that order, the petitioner was informed by Office Order being No. 4446 dated 13.09.2010 that his case for the post of Sanitary Inspector would be considered along with others as and when such post would be advertised or names would be called from the Employment Exchange. Under the circumstances, the petitioner has prayed for cancelling the impugned order no. 4446 dated 13.9.2010 and other reliefs for giving him appointment to the post of Sanitary Inspector under the Municipal Council.

The respondent authorities and the respondent nos. 2, 4 and 5 are contesting the said writ application by filing appropriate affidavits-in-opposition contending inter-alia that the contents of the writ application are not true. The petitioner approached the Hon''ble High Court with un-cleaned hands. The grounds as set out for reliefs are vexatious, harassing, false, baseless and devoid of merits. The petitioner is not entitled to get any reliefs as claimed in the writ petition.

Now the question is whether the petitioner is entitled to get the reliefs, as sought for in the writ application.

Upon hearing the learned counsel for the parties and on going through the materials on record, I find that there is no dispute that the petitioner was appointed initially as Daily Rated Mazdoor under the Port Blair Municipal Council. It is not in dispute that the petitioner was then appointed as Sanitary Mazdoor with effect from January 06, 2000. It is not in dispute that the petitioner possesses the requisite qualification for being appointed as Sanitary Inspector. It also not in dispute that as per order dated May 03, 2005, the Port Blair Municipal Council shall follow the govt. Recruitment Rules for the posts which are similar to posts in Govt. Departments under the Administration. Where posts are dissimilar or Govt. Rules are non-existent Port Blair Municipal Council shall frame special Recruitment Rules and take approval of the Administration. It is not in dispute that A&N Administration, Secretariat sanctioned three posts of Sanitary Inspector initially. Several litigations were held between the Administration and the writ petitioner claiming to be entitled to be appointed to the post of Sanitary Inspector, such as the W.P.No. 157 of 2006 and the W.P.No.78 of 2008 and those two writ petitions were disposed of directing the Administration to consider the candidature of the writ petitioner to the post of Sanitary Inspector. The petitioner also filed another writ petition being W.P. No. 1209 of 2010 for his promotion to the post of Sanitary Inspector and by an order dated August 19, 2010 this Hon''ble Court directed that no adhoc promotion should be granted ordinarily. If, however, for emergent reasons, any adhoc promotion was required to be made, all the officers who were eligible in terms of the draft Recruitment Rules should be considered on merits. It is not also in dispute that by the order dated 22.02.1988, Administration framed rules to the effect that the method of recruitment to the post of Sanitary Inspector would be 100% by direct recruitment. Other qualifications had been mentioned therein. Subsequently, the number of sanctioned posts was increased to 12. At one point of time, the Administration decided that the candidature of the petitioner could not be considered for the said post of Sanitary Inspector as per order of the Hon''ble Court inasmuch as all the posts were filled up and the method of recruitment was 100% by direct recruitment.

It may be pointed out herein that the Municipal Council issued the order No. 4001 dated August 12, 2010, appointing the writ petitioners of the W.P.No.1330 of 2010 on adhoc basis for a period of 3 months or till the finalization of proposed Recruitment Rules of the post, whichever is earlier and the said order was cancelled subsequently.

Pursuant to the order of the Hon''ble Court, the Secretary, Municipal Council passed the Office Order being No. 4446 dated September 13, 2010, upon hearing the writ petitioner and another candidate, Shri. Sanjeev Kumar( i.e. the petitioner of the W.P. No. 1302 of 2010). It has been recorded therein that the Recruitment Rules in force now provide that the post of Sanitary Inspector is to be filled up by direct recruitment and the educational qualification for the said post has been mentioned therein. It is also observed therein that when advertisement will be made or names will be called for from the Employment Exchange for filling up the said posts, the petitioner shall also be considered along with others in compliance with the order of the Hon''ble High Court.

Subsequently, the Recruitment Rules for the post of Sanitary Inspector had been published by the notification dated February 22, 2011 issued by the A&N Administration, Secretariat indicating that 12 posts had been sanctioned and method of recruitment would be 50% by promotion, failing which by direct recruitment and 50% by direct recruitment. The other qualifications had been mentioned therein. The Administration issued the Notification for the publication in the press by its letter dated February 21, 2011. In the said premises, pursuant to the order of the Hon''ble Court, Circuit Bench, the Administrative authority passed the impugned order following the notification relating to the method of recruitment and upon personal hearing of the writ petitioners of the W.P. No. 1301 of 2010 and the W.P. No. 1302 of 2010.

Mr. Jayapal appearing on behalf of the writ petitioner has submitted that the revised Rules shall not be applicable. The writ petitioner having the requisite qualification is entitled to get the promotion to the post of Sanitary Inspector.

Mrs. Anjili Nag, learned counsel appearing on behalf of the petitioners of the W.P. No.1330 of 2010 and the added respondents of the other two writ petitions has submitted that the Circuit Bench of this Hon''ble Court gave several directions for consideration of the candidature of the Sanitary Mazdoors for promotion, but those directions were not considered. She has also submitted that even adhoc appointments were given but such adhoc appointments were cancelled subsequently pursuant to the order passed by this Bench and the rule as prevailed earlier should be followed in the case of appointment of the petitioners to the posts of Sanitary Inspector. In support of her contention, she has referred to the decision of Dr. Ramulu and another, etc. Vs. Dr. S. Suryaprakash Rao and others, By referring this decision, she has submitted that a person eligible under the un-amended rules whether at this stage is entitled to be considered for promotion in pre-amendment vacancies in accordance with the un-amended rules. With due respect to Mrs. Anjili Nag, I am of the opinion that the ratio of the decision will not be helpful in favour of the petitioners at all. The ratio of the decision is that the respondent has not acquired any vested right for being considered for promotion in accordance with the repealed Rules in view of the policy decision taken by the government which is justifiable on the materials available from the record. In case of exigency, the government may take up adhoc appointment but this is not at all a regular appointment. Subsequently, the adhoc appointment was cancelled and the impugned order was passed.

Mr. S.K. Mandal, learned Government Pleader appearing on behalf of the Administration and Mr. Arul Prasanth, learned counsel appearing for the Municipal Council have also submitted in the same voice that no promotion could be claimed as a matter of right. I fully agree with the submissions made by Mr. Mandal and Mr. Arul Prasanth. Promotion cannot be claimed at all as a matter of right.

This being the position, I am of the view that there is no scope of interference with the impugned order.

This application is, therefore, devoid of merits. It is, therefore, dismissed.

There will be no order as to costs.

W.P.No 1302 of 2010

In view of the decision in W.P. No.1301 of 2010, this writ petition is also devoid of merits and the impugned order does not call for any interference.

Accordingly, the writ petition is dismissed.

There will be no order as to costs.

W.P.No. 1330 of 2010

In view of the order passed in W.P. No. 1301 of 2010, this writ petition is also devoid of merits. There is no scope of interference of the impugned order. Accordingly, the writ petition is dismissed.

There will be no order as to costs.

Urgent xerox certified copy of this judgment be supplied to the parties, if applied for, on observing all required formalities.