Central Administrative Tribunal - Cuttack
P K Das vs Sports Authority Of India on 25 July, 2024
1 T.A.No. 260/00021 of 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
T.A.No. 260/00021 of 2014
Reserved on 24.07.2024 Pronounced on 25.07.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
1. Prasanta Kumar Das, aged about 37 years, S/o Ananda
Chandra Das.
2. Surit Kumar Nayak, aged about 35 years, S/o Late
Brahmananda Nayak.
Both are Junior Accountants, SAI Water Sports Centre,
At/PO. Jagatpur, Dist. Cuttack. And SAI Training Centre
Dhenkanal.
......Applicants
VERSUS
1. Union of India, represented through the Secretary, Sports
Authority of India, J.N.Stadium, New Delhi - 3.
2. Director General, Sports Authority of India, J.N.Stadium,
New Delhi-3.
3. Regional Director, Sports Authority of India, Salt Lake
City, N.S.E.C., Kolkata - 98.
4. Asst. Director, Sports Authority of India, SAI Water Sports
Centre, At/PO-Jagatpur, Dist.-Cuttack.
.....Respondents
For the Applicants : Dr. J.K.Lenka, Mr. P.K.Behera, Counsel.
For the Respondents: Mr. L.Mishra, Counsel
2 T.A.No. 260/00021 of 2014
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
The case of the applicants in short (in OA, rejoinder, written note as well as in course of hearing) are that on 01.09.1993 they were appointed as Jr. Accountant (Class-III posts) [in short JA] on consolidated pay of Rs. 2000/-. They were allowed pay scale of Rs. 4000-6000/- plus DA from 17.09.1999. Vide order dated 05.06.2000 (A/9), applicants were excluded from the eligibility of LDCE for the post of Jr. Accountant as they were treated as casual employee. Thereafter, respondents issued circular dated 26.06.2002 stating inter alia that 16 posts of JA are to be filled up through LDCE from amongst the employees of Sports Authority of India (SAI). On 17.08.2002, applicant No.1 made representation to Respondent No.3 for regularization of his services. Subsequently, notification dated 24.01.2003 was issued for holding LDCE for the post of Jr. Accountant. It is the case of the applicant that though they had completed 10 years of service at the relevant of time and had requisite qualification of B.Com and knowledge of computer application and had also applied for the LDCE, their names were not included in the list of eligible 3 T.A.No. 260/00021 of 2014 candidates. Being aggrieved, applicants approached before Hon'ble High Court of Orissa in W.P.(C) No. 2401/2003 praying inter alia for direction to the respondents to treat them eligible and accordingly allow them to appear in the Limited Departmental Examination and consider their cases for regularization giving due weightage to the experience gained by them. The said Writ Petition was transferred to this Tribunal and renumbered as TA 21/2014. The relief sought in the Writ Petition was amended as under:
"The Petitioners, therefore, most humbly pray that this Hon'ble Tribunal pleased to direct the respondents that the petitioners are eligible and accordingly, allow them to appear in the Limited Departmental Examination and consider their cases for regularization giving due weightage to the experience gained by them.
AND Direct the Respondents to treat the Applicants as regular Junior Accountant from the date of initial appointment or alternatively from the date of completion of 10 years as per Apex Court direction in M.L.Keshari case with consequential benefits.
And issue any other order/direction which would afford complete relief to the petitioners in the facts and circumstances of the case; And for this act of kindness, the petitioners as in duty bound shall every pray."
1.1 The TA was disposed of vide order dated 28.11.2019. Respondents challenged the aforesaid order before Hon'ble High Court of Orissa in W.P.(C)No. 5861/2021. The applicant filed RA 90/2019 4 T.A.No. 260/00021 of 2014 seeking review of the order dated 28.11.2019. In consideration, this Tribunal allowed the RA and restored the TA to its file for hearing afresh. Consequent upon restoration the W.P.(C) No. 5861/2021 filed by the respondents department before the Hon'ble High Court of Orissa was disposed of as infructuous.
1.2 Ld. Counsel for the applicants by placing reliance on the decision of the Bangalore Bench of the Tribunal in OA No. 297/2011 disposed of on 03.02.2012 (Smt. Susheela & Ors. Vs. UOI & Ors.) and the Hon'ble Apex Court in the case of State of Karnataka Vs. M.L.Kesari in SLP No. 15774/2006 has submitted that in view of the long continuance of the applicants, they ought to have been regularized and allowed to appear at the LDCE for Jr. Accountant. Further, it has been contended that one Sri Kamakhya Prasad Dwivedy, who was appointed initially on contractual basis was regularized vide order dated 25.08.1993 although he never appeared at the written examination. Similarly, one Sri Judhistira Dang, appointed as casual labourer under the Commissioner cum Secretary, Department of Woman and Child development, Govt. of Orissa, approached before OAT, Cuttack in OA No. 2783(C) of 2002 praying for regularization, which was dismissed 5 T.A.No. 260/00021 of 2014 against which, W.P.(C) No. 8446/2009 was filed before the Hon'ble High Court of Orissa and the same was allowed. Therefore, non- regularization of the applicants and not allowing them to appear at the LDCE is highly illegal, arbitrary and in violation of the mandate enshrined in Article 14 and 16 of the Constitution of India. Therefore, he has prayed for the relief claimed in this TA.
2. By placing reliance on the averments made in the pleadings, Ld. Counsel for the respondents has vociferously opposed the stand taken and relief sought in support thereof by the applicant inter alia stating that the applicants were engaged to discharge the duty of Jr. Accountant on contract 89 days basis from 01.09.1993 with a consolidated pay of Rs. 2000 per months and with specific condition that such appointment would not confer any right on them to claim for extension or for regularization. Initially, the applicants approached before the Hon'ble High Court of Orissa in WP(C) No. 2401/2003 seeking direction to allow them to appear at the LDCE. While the matter stood thus, upon conferment of jurisdiction over the service matters relating to SAI, the said WP(C) No. 2401/2003 was transferred to this Bench and renumbered as TA 21/2014. By filing application, the 6 T.A.No. 260/00021 of 2014 applicants amended the prayer for direction to regularize them. In terms of the rules, applicants being contractual appointees had no right to appear at the LDCE, which was meant for the regular employees of the SAI. The applicants were never appointed against any sanctioned post through the valid process of selection as per rules. It is submitted that from the Minutes of 71st meeting of the financial committee held on 03.07.2015 it transpires that 65 casual labourers including applicants were conferred with temporary status as per the scheme. In compliance of the DoP&T OM and the decision of the Hon'ble Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi dated 10.04.2006 and in the case of M.L.Kesari (supra), as a one time measure, their cases were considered along with other causal labourers but the applicants were found unsuitable for such regularization. Also, in the drive conducted on 2011 for selection of Jr. Accountant, the applicants failed to qualify the same. It is submitted that if Sri Kaushik Kumar Das was regularized in supersession of their cases, they should have challenged it then and there but merely because one is given the benefits contrary to rules, the other cannot claim the said benefit as a matter of right. According to the respondents 7 T.A.No. 260/00021 of 2014 counsel, since engagement of applicants were on contractual 89 days basis that too without following due process of rules and not against any sanctioned post so also they were found ineligible for regularization, their claim in the OA is not sustainable.
3. We have considered the submissions of the parties and perused the records.
4. No record has been produced to show that the applicants are still continuing on such casual basis. Also, no record is produced that they were selected through any process of selection against sanctioned post, rather it is established from the record that the appointment of the applicants were on contractual 89 days basis. They were allowed to participate in the selection process but they were found ineligible. We are of the opinion that the applicants' claim for their regularization merely because they were engaged on contractual 89 days basis cannot be granted in the light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made 8 T.A.No. 260/00021 of 2014 permanent, if the original appointment was not in terms of the process envisaged by the relevant rules [Ref: Official Liquidator Vs. Dayanand & Ors. (2008) 10 SCC 1; State of Karnataka & Ors. Vs. Ganapathi Chaya Nayak & Ors. (2010) 3 SCC 115; Union of India & Anr. Vs. Kartick Chandra Mondal & Anr.; Satya Prakash & Ors. Vs. State of Bihar & Ors., (2010) 4 SCC 179, and Rameshwar Dayal Vs. Indian Railway Construction Company Limited & Ors. (2010) 11 SCC 733).
5. In the case of Accounts Officer (A&I), A.P. SRTC Vs. P. Chandra Sekhara Rao,(2006) 7 SCC 488, the Hon'ble Apex Court has held as under:
"7. The Constitution Bench in its judgment approved another Division Bench decision of this Court in A. Umarani v. Registrar, Coop. Societies (2004) 7 SCC 112 wherein this Court opined: (SCC p. 126, para 45) " 45 . No regularization is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules."
6. Further, in the case of Surinder Prasad Tiwari vrs. U.P. Rajya Krishi Utpadan Mandi Parishad, JT 2006 (8) SC 504, Hon'ble Apex Court held as under :
"38. In view of the clear and unambiguous constitutional scheme, the courts cannot countenance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional 9 T.A.No. 260/00021 of 2014 philosophy, it would be improper for the courts to give directions for regularisation of services of the person who is working either as daily-wager, ad hoc employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14, 16 and 309 of the Constitution. In our constitutional scheme, there is no room for back door entry in the matter of public employment. (emphasis supplied)
7. The opinion of the Hon'ble Apex Court in the case of National Fertilizers Ltd. vrs. Somvir Singh, AIR 2006 SC 2319, is as follows:
"13. The respondents herein were appointed only on applications made by them. Admittedly, no advertisement was issued in a newspaper nor was the employment exchange notified as regards existence of vacancies. It is now trite law that a State within the meaning of Article 12 of the Constitution is bound to comply with the constitutional requirements as adumbrated in Articles 14 and 16 thereof. When the Recruitment Rules are made, the employer would be bound to comply with the same. Any appointment in violation of such Rules would render them as nullities. It is also well settled that no recruitment should be permitted to be made through back door. (emphasis supplied)
8. In Madhyamik Shiksha Parishad, U.P. Vs. Anil Kumar Mishra and Others, AIR 1994 SC 1638, a Three Judge Bench of Hon'ble Apex Court held that ad hoc appointees/temporary employees engaged on ad hoc basis and paid on piece-rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period ranged from one to two years.
10 T.A.No. 260/00021 of 2014
9. In A. Umarani Vs. Registrar, Cooperative Societies and Others, (2004 (7) SCC 112), a Three Judge Bench of Hon'ble Apex Court made a survey of the authorities and held that when appointments were made in contravention of mandatory provisions of the Act and statutory rules framed thereunder and by ignoring essential qualifications, the appointments would be illegal and cannot be regularized by the State.
10. In State of U.P. Vs. Niraj Awasthi and others, (2006 (1) SCC
667), Hon'ble Supreme Court after referring to a number of prior decisions held that there was no power in the State under Art. 162 of the Constitution of India to make appointments and even if there was any such power, no appointment could be made in contravention of statutory rules. The Hon'ble Court also held that past alleged regularization or appointment does not connote entitlement to further regularization or appointment. It was further held that the High Court has no jurisdiction to frame a scheme by itself or direct the framing of a scheme for regularization. This view was also reiterated in State of Karnataka vs. KGSD Canteen Employees Welfare Association, JT 2006 (1) SC 84.
11 T.A.No. 260/00021 of 2014
11. On examination of the facts and the law discussed above, we find that the initial engagement of the applicants were on contractual basis without following due process of rule/law and not against any regular vacancy. It is also not established that the applicants have been continuing on such engagement uninterruptedly rather we find that they were given opportunity to compete in selection with others but they did not find any berth. Back door entry in public employment has been deprecated by the Hon'ble Apex Court time and again. In the said premises, we do not find violation of any substantial/fundamental right of the applicants or for that matter any promise held out to them at the time of their initial engagement on contractual basis. The respondents in compliance of the decision of the Hon'ble Apex Court in the case of M.L.Kesari (supra) taken step as one time measure for regularization but the applicants did not qualify there. We have taken into consideration the citations relied on by the Ld. Counsel for the applicant in the cases of Saktipada Mohapatra Vs. State of Orissa & Ors., Civil Appeal No. 1215/2022 arising out of SLP (C) No. 3428/2021, and Amarkant Rai Vs. State of Bihar & Ors, (2015) 8 SCC 265. We find that the facts and issues involved in these two decisions and the 12 T.A.No. 260/00021 of 2014 other decisions, noted in the preceding paragraphs, are completely different and distinct to the facts of the case in hand and, therefore, we are of the considered view that the above two decisions have no application in the instant case. Insofar as the allegation of the applicants that one Sri Kamakhya Prasad Dwivedy, who was appointed initially on contractual basis having been regularized vide order dated 25.08.1993, they have a right to be regularized is concerned, we may state that the applicants having kept silent when Sri Dwivedy was regularized on 25.08.1993, at this belated stage, they are estopped under law to claim the said benefits because once it is established that the applicants had no legal right of regularization, merely because some irregularities and illegalities have been committed by the respondents in some other cases with respect to regularization, that would not confer any right upon the petitioner to claim parity. The right of equality under Article 14 and 16 of the Constitution is a positive concept and not a negative one as held by the Hon'ble Apex Court in the case of Post Master General, Kolkata and others Vs. Tutu Das, 2007(5) SCC 317.
12. In view of the discussions made above, we find no merit in this 13 T.A.No. 260/00021 of 2014 case, which is dismissed accordingly. Parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS