Patna High Court
The Union Of India And Ors vs Manoj Kumar Pathak And Ors on 4 February, 2023
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8726 of 2014
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1. The Union Of India
2. The Director General, AIR, Akaswani Bhawan, New Delhi -1.
3. The Dy. Director General Administration, AIR, New Delhi.
4. The Director, AIR, Patna Cum Deputy Director Engineering, All India
Radio, Patna.
... ... Petitioner/s
Versus
1. Manoj Kumar Pathak S/o Sri Gangadhar Pathak LIG, 7/234, K Sector,
Hanuman Nagar, Kankarbagh, Patna - 20.
2. Shaym Kishore Mehrotra son of Late Raj Kishore Mehrotra resident of
Sushil Villa, East Kanulal Road, Mithapur, Patna.
3. Navin Kumar son of Sri Surendra Kishore Sinha resident of Road No. 6C,
AAM. Bagicha, Mahadeopuri, Gardanibagh, Patna - 1.
4. Satya Minakshi son of Sri Saethchandra Gupta Thakur Bhawan, Opposite
new Police Line First Floor, Budh Marg, Patna - 1.
5. Sima Sahay son of Late Janak Nandansaha-1, C/o Sri S.K. Sinha, Jyoi Kunj,
4/197 people Co-operative Colony, Kankarbagh, Patna - 20.
6. Shailesh Jamayar son of Sri Shiv Narayan Prasad resident of New
Jakkanpur, Gandhi Nagar, Patna - 1.
7. Shaida Warsi son of Late Gulam Warsi resident of Mohalla SCERT Campus,
Madhendru, Patna - 6.
8. Manju Shriwastawa son of Sri Braj Bhushan Sinha resident of 3/F 290 NPP
Colony, P.O. - Patliputra, Patna - 13.
9. Arpana Singh son of Sri Sandesh Prasad Singh resident of House No. 38, Sri
Krishna Nagar, Patna - 1.
10. Madhumati Kumari C/o Mahendra Prasad resident of Ramkrishna Nagar
Rorangpur P.O. Dhelwa, Lohia Nagar, Patna - 20.
11. Poonam C/o Sri Dashrath Kumar Singh resident of Vidya Niwas, Industrial
State, Patna.
12. Joginder Singh Albela son of Late Nirmal Singh resident of 53-Garand
Square Danapur Cant., Patna.
13. Sushma Sinha wife of Sri Sachin resident of 75-E, Road No. 10, Rajendra
Nagar, Patna - 16.
14. Sushma Sinha W/o J.P. Sahai resident of Patliputra, Patna.
... ... Respondent/s
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Patna High Court CWJC No.8726 of 2014 dt.04-02-2023
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Appearance :
For the Petitioner/s : Mr. K.N. Singh, A.S.G
Mr. Manay Kumar Singh, C.G.C.
For the Respondent/s : Mr. Sanjeev Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 04-02-2023
In the instant petition, Union of India - department
feeling aggrieved and dissatisfied with the order of the Central
Administrative Tribunal dated 31.05.2013 (Annexure-1)
presented this petition.
Brief facts of the case are that respondents were stated
to have been appointed on ad-hoc basis with the petitioner
department during the intervening period from the year 1980 to
1996. Their grievance is that they are entitled to regularization
against the post held by each of the respondent. In this regard,
respondents have invoked judicial forum on two occasions. In
fact matter was taken up before the Hon'ble Supreme Court.
Hon'ble Supreme Court while deciding Civil Appeal No. 863 of
2006 and 7566 of 2008 decided on 09.03.2011, order of the
Apex Court reads as under:-
"Since the question involved
in these two appeals are the same, we
dispose of the same by this common
order. For the sake of convenience, the
facts are taken from Civil Appeal No.
863 of 2006.
Patna High Court CWJC No.8726 of 2014 dt.04-02-2023
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The High Court by the
impugned judgment has dismissed the
petitions filed by the appellants herein
against the order of the Tribunal
whereby the Tribunal directed the
appellants herein to consider the case of
respondents for regularisation and
eventual absorption against the regular
vacancy in due course in terms of the
scheme formulated for regularisation of
casual Production Assistants and
General Assistants in the All India
Radio pursuant to the judgment of
Central Administrative Tribunal,
Principal Bench, New Delhi, in 0.A. No.
822/1991 dated 18.09.1992.
The Tribunal further directed
that in the alternative, a scheme to be
formulated and implemented by the
appellants herein for the regularisation
of eligible respondents in the light of the
scheme already formulated by the
Department. The respondents herein are
announcers/ comperes. There is no
dispute, whatsoever, that they were
engaged on a casual basis. It was
specifically contended by the appellants
that the respondents were engaged on
assignment basis to work only for six
days in a month, that is, for 72 days in a
year. It was the further contention of the
appellants that they were not engaged
against any regular vacancy and
therefore they were not appointed as
regular announcers. It is under those
circumstances, the appellants contended
that the respondents were not entitled to
regularisation on whatsoever basis. The
Tribunal, miserably, failed to advert to
these crucial aspects of the matter.
There is no finding as such recorded by
the Tribunal either accepting or
rejecting the said contention. This issue,
in our considered opinion, decides the
fate of this lis.
The High Court merely
Patna High Court CWJC No.8726 of 2014 dt.04-02-2023
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confirmed the directions issued by the
Tribunal and there is no finding as such
recorded even by the High Court on this
crucial aspect of the matter.
For the aforesaid reasons, the
impugned judgments of the Tribunal as
well as of the High Court are set aside.
These appeals are allowed. The O.A.
filed by the respondents shall stand
restored to its file for the hearing on
merits with the further direction that the
Tribunal may have to consider the
question referred to hereinabove and
record a finding thereon. We have not
expressed any opinion, whatsoever, on
the merits on any of the contentions
placed before us and we have,
accordingly, left them open for the
decision of the Tribunal.
We request the Tribunal to
dispose of the O.A. as expeditiously as
possible, preferably within six months
from the date of receipt/ production of a
copy of this order.
Impleadment ordered.
The appeals are, accordingly,
disposed of."
In the light of the Apex Court's decision cited
(supra) , O.A. No. 541 of 1997 was decided afresh by the
Central Administrative Tribunal, Patna Bench, Patna para 18 to
23 reads as under:-
"18. In our opinion, the
contention of the respondents that the
applicants are not engaged against the
sanctioned and vacant post is also not
tenable as the applicants were
admittedly selected through proper
notification and after going through the
written examination, interview and
training in a similar process required
for regular Announcer-cum- Comparer
Patna High Court CWJC No.8726 of 2014 dt.04-02-2023
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in view of the Circular dated
26.03.1979In view of the above, the contention of the respondents that the applicants are not entitled for regularisation and subsequent absorption as they have only worked for 72 hours in a year and they are not engaged against regular vacancy is not tenable or acceptable to us and in our opinion the applicants are entitled to be considered for regularisation and subsequent absorption being similarly circumstances with the persons who got benefit under the different schemes made either as per direction of this Tribunal in OA No. 822/1991 or their own scheme formulated earlier.
19. In view of the aforesaid discussions of the factual and legal aspect of the matter, we are of the opinion that the case of the applicants is also squarely covered by the judgment passed by the Hon'ble Apex Court in the case of State of Karnataka Vs. Uma Devi reported in 2006(4) SCC 1 as well as State of Karnataka & Ors. Vs. M.L. Kesari & Ors. Reported in (2010) 2SCC(L&S) 824, wherein the issue of regularisation of casual labour was dealt with. Hon'ble Apex Court in the matter of State of Karnataka & Ors. Vs. M.L. Kesari & Ors has held as under:-
5. It is evident from the above that there is an exception to the general principles against 'regularisation' enunciated in Umadevi, 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 Patna High Court CWJC No.8726 of 2014 dt.04-02-2023 6/16 the employee and continued him in service voluntarily 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 applicants 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.
Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one time measure. Umadevi directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.04.2006).
6. The term 'one time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for Patna High Court CWJC No.8726 of 2014 dt.04-02-2023 7/16 the post and if so, regularize their services.
7. At the end of six months from the date of decision in Umadevi, cases of several daily-wage/ad- hoc/casual employees were still pending before Courts. Consequently, several departments and instrumentalities undertook the one- time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi, will not lose their right to be considered for regularization, merely because the one-time exercise was completed without considering their cases, or because the six month period mentioned in para 53 of Umadevi has expired. The one-time exercise should consider all daily- wage/adhoc/those employees who had put in 10 years of continuous service as on 10.04.2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one time exercise will be concluded only when all the employees who are entitled to be considered in terms of Para 53 of Umadevi, are so considered.
8. The object behind the said direction in para 53 of Umadevi is two- fold. First is to ensure that those who have put in more than ten years of Patna High Court CWJC No.8726 of 2014 dt.04-02-2023 8/16 continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad-hoc /casual for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.04.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi as a one-time measure.
9. These appeals have been pending for more than four years after the decision in Umadevi. The appellant (Zila Panchayat, Gadag) has not considered the cases of respondents of regularisation within six months of the decision in Umadevi or thereafter.
10. The Division Bench of the High Court has directed that the cases of respondents should be Patna High Court CWJC No.8726 of 2014 dt.04-02-2023 9/16 considered in accordance with law. The only further direction that needs to be given, in view of Umadevi, is that the Zila Panchayat, Gadag should now undertake an exercise within six months, a general one time regularisation exercise, to find out whether there are any daily wage/casual/ad-hoc employees serving the Zila Panchayat and if so whether such employees (including the respondents) fulfill the requirements mentioned in para 53 of Umadevi. If they fulfill them, their services have to be regularised. If such an exercise has already been undertaken by ignoring or omitting the cases of respondents 1 to 3 because of pendency of these cases, then their cases shall have to be considered in continuation of the said one time exercise within three months. It is needless to say that if the respondents do not fulfill the requirements of Para 53 of Umadevi, their services need not be regularised. If the employees who have completed ten years service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularisation in suitable lower posts. This appeal is disposed of accordingly."
20. In the instant case also, the applicants were appointed against the proper notification after passing successfully in the written examination, interview as well as training and were appointed against the sanctioned post as per the circular dated 26.03.1979 on daily rated basis and worked almost 22 days in a month. It is noted that the contention of the respondents is that the applicants are not on the same footing with the regular employees as because neither prescribed Selection Board for Patna High Court CWJC No.8726 of 2014 dt.04-02-2023 10/16 recruiting regular Announcer/Compere had been constituted nor any roster point for reservation was followed in the case of appointment of Announcer/Compere, who were engaged on assignment basis as per normal procedure. But we are not convinced with the said contention of the respondents as admittedly the applicants were appointed against different notifications and after following proper procedure, and the question of roster point will come in case of permanent appointment and since admittedly they were appointed on daily rated basis as casual artists, obviously the question of roster point will not come, and thus, the ground for rejection on this count is not tenable. Moreover, as per the above mentioned judgment, i.e. in the cases of Uma Devi and M.L. Kesari (supra), the applicants were admittedly appointed and are working since 1980 and onwards without any intervention of any court and as observed above, as their appointment was also against the sanctioned post and after due process, the benefit of regularisation as per the law settled by the Hon'ble Apex court in the cases of Uma Devi and M.L. Kesari (supra) cannot be denied to the applicants. In the present case also the case was filed in the year 1997 and it has gone upto the Hon'ble Apex Court and thereafter it has been remanded back to this Tribunal. Hence, the applicants are entitled to get the benefit of regularisation and subsequent absorption.
21. From the above observations, the findings arrived by us are as follows:-
(i) The applicants were appointed against the proper notification after passing successfully in Patna High Court CWJC No.8726 of 2014 dt.04-02-2023 11/16 the written examination, interview as well as training and were appointed against the sanctioned post as per the circular dated 26.03.1979 on daily rated basis.
(ii) They were appointed against sanctioned vacant post as per circular dated 26.03.1979.
(iii) With regard to working of 6 days in a month or 72 days in a year it is observed that as per para 3 of the Revised Scheme dated 17.03.1994 (Annexure P/8 to Supplementary Application), counting of number of days is based on Minimum Wages Act and as per the said para-3 the applicants are working not less than 22 days in a month for six assignments which has been confirmed by the Hon'ble Apex Court. The Doordarshan and AIR have also regularised their casual artists on the basis of the said OM dated 17.03.1994. In actual practice, the applicants have worked throughout the year. Thus, the plea of working of 72 days is not sustainable.
(IV) As the applicants are exactly similarly circumstanced with regard to their procedure of appointment as well as nature of appointment with the applicants of OA No. 563/1986 and OA No. 822/1991 they cannot be discriminated only on the ground of not being a party to the said cases.
(V) The case of the present applicants are squarely covered by the judgment of the Hon'ble Apex Court passed in the case of Uma Devi and M.L. Kesari (supra) for the purpose of regularisation and subsequent absorption of the applicants.
22. In view of our observations made in para 8 to 20 above and our findings arrived at para 21 above, we, accordingly, direct the Patna High Court CWJC No.8726 of 2014 dt.04-02-2023 12/16 respondents to consider the case of the applicants for regularisation and eventual absorption against the regular vacancy in due course in terms of the scheme formulated for regularisation of Casual Production Assistant and General Assistants in the AIR pursuant to the judgment of the Principal Bench of the CAT in OA No. 822/1991 dated 18.09.1992 or alternatively to formulate a scheme for regularisation of the eligible applicants in the light of the scheme already formulated by the said Department pursuant to the order passed in OA No. 563/1986 and OA No. 822/1991 within a period of four months from the date of receipt of a copy of this order.
23. The OA is disposed of accordingly with above directions with no order as to costs."
Learned counsel for the respondent submitted that the present lis is to be differentiated in the light of pendency of Special Leave to Appeal (C) .....CC No (s). 13876-13877 of 2016 filed on behalf of the petitioner department from the case of Purushottaman C. and Others. Apex Court, on 05.09.2016 while condoning the delay granted, leave and further ordered that status quo shall be maintained as on 05.09.2016.
The present writ petition could be different due to pendency of litigation filed by the petitioner from the case of Purushottaman C. and Others for the reasons that matter relates to regularization. It all depends on each individual service particulars read with the Constitution bench decision in the case Patna High Court CWJC No.8726 of 2014 dt.04-02-2023 13/16 of Secy., State of Karnataka and others vs. Uma Devi reported in (2006) 4 SCC 1 and State of Karnataka and Ors. vs. M.L. Kesari and Ors. reported in (2010) 9 SCC 247.
The Central Administrative Tribunal has taken note of both the aforementioned decisions and proceeded to pass orders.
Therefore, we feel that pendency of litigation before the Apex Court filed on behalf of the petitioner department insofar as Purushottaman C. and Others case would not come in the way of deciding the petition.
Having regard to the findings given by the Central Administrative Tribunal, Patna interfering only in respect of last portion of the order namely "alternatively to formulate a scheme for regularization of the eligible applicants in the light of scheme already formulated by the Department pursuant to the order passed in OA NO. 563/1986 and OA No. 822/1991 within a period of four months from the date of receipt of a copy of this order."
The aforementioned direction by the Central Administrative Tribunal is arbitrary. Accordingly, it is liable to be set aside for the reasons that time and again Courts are held that formulation of any scheme or service condition of an employee of a State or Central Government or its subsidiary units, it is a policy decision that Courts cannot interfere or give Patna High Court CWJC No.8726 of 2014 dt.04-02-2023 14/16 positive direction for the purpose of formulating the scheme of regularization. In fact Apex Court in the Case of Secy., State of Karnataka and others vs. Uma Devi itself discussed elaborately that Tribunals/Courts cannot give positive direction for framing of scheme of regularization or for regularization of an ad-hoc employee.
Therefore, petitioners have made out a prima facie case so as to interfere with the order of the Central Administrative Tribunal dated 31.05.2013 passed in O.A. No. 541 of 1997 to the extent of giving direction to the petitioner department by the Central Administrative Tribunal is hereby set aside. The remaining portion of the orders passed by the Central Administrative Tribunal for the purpose of absorption of each of the respondent is in order and we cannot interfere. That apart, it is to be noted that ultimate direction given by the Central Administrative Tribunal is to consider the case of applicants -
respondents for regularization. The concerned authority is hereby directed to take note of each of the respondent service particulars and each of the respondent fulfills the criteria laid down by Apex Court in the case of Secy., State of Karnataka and others vs. Uma Devi Read with M.L. kesari. Criterias Viz;
(a) There should be sanctioned post in the department. Patna High Court CWJC No.8726 of 2014 dt.04-02-2023 15/16
(b) Worker/workers shall be working at such post for more than 10 years; (c) The appointment of such employees shall not be illegal, even if it is irregular; and (d) The employee/employees shall not be working under the umbrella of any order, prominent of interim, by any court of law in India. In the State of Karnataka Vs. M.L. Kesari, Apex Court held that the service of the employee/employees shall be for 10 regular years, which should have been completed on or before 10 th April 2006 (i.e. date of the judgment in Uma Devi's Case) and that the scheme would be formulated as one time scheme. Concerned petitioner is hereby directed to pass a speaking order within a period of 4 months from the date of receipt of this order. Speaking orders shall be communicated to each of the respondent at the earliest for the reasons that this is a second round litigation by the respondents.
Accordingly, the present writ petition stands disposed of. Pending I.A. if any, stands disposed of.
At this stage, learned counsel for the petitioner submitted that each of the respondent were stated to have not working against sanctioned post, therefore, whatever the observation made by the Central Administrative Tribunal is required to be set aside. It is to be noted that Central Patna High Court CWJC No.8726 of 2014 dt.04-02-2023 16/16 Administrative Tribunal direction is only for consideration of each of the applicants for regularization in the light of the Apex Court's decision. If any of the respondent is not working against the sanctioned post, in that event, such respondent is not covered by Apex Court's decision in the case of Secy., State of Karnataka and others vs. Uma Devi.
(P. B. Bajanthri, J) ( Arun Kumar Jha, J) shoaib/-
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