Central Administrative Tribunal - Kolkata
Augusta Kujur vs Education on 29 January, 2025
1
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
(CIRCUIT AT PORT BLAIR)
No.O.A. 351/407/A&N/2017 Date of Hearing : 10.12.2024
Date of order: 29.01.2025
Present : Hon'ble Mrs. Urmita Datta (Sen), Judicial Member
Hon'ble Mr. Suchitto Kumar Das, Administrative Member
Mrs. Augusta Kujur w/o Shri Gedian, R/o Quarter No. 25,
Jawahar Colony, School Line, Port Blair, South Andaman
District, presently working as Craft Instructor (Music) Part
Time at Government Secondary School, Delanipur, Port
Blair, South Andaman District.
...........Applicant
-Versus-
1. Union of India through the Secretary, Ministry of Human
Resource Development (Education Department), Govt. of
India, Shastri Bhavan, New Delhi-110001.
2. The Lt. Governor, Andaman & Nicobar Islands, Raj
Niwas, Port Blair-744101.
3. The Chief Secretary, A & N Administration, Secretariat
Building, Port Blair-744101.
4. The Secretary-cum-Director (Education), Andaman &
Nicobar Administration, Secretariat Building, Port Blair-
744101.
5. The Deputy Director of Education (Perl.), Directorate of
Education, Port Blair.
......... Respondents
Digitally signed by SOMA BANDYOPADHYAY
DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=
SOMA
133596418541584061RzFJVlZ8C5fhN1, Phone=
248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d,
PostalCode=700114, S=West Bengal, SERIALNUMBER=
f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=
SOMA BANDYOPADHYAY
BANDYOPADHYAY
Reason: I am the author of this document
Location:
Date: 2025.02.04 15:57:49+05'30'
Foxit PDF Reader Version: 2024.3.0
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For the Applicant : Mr. Rajinder Singh, Counsel
For the Respondents : Mr. R. Kumar, Counsel
ORDER
Urmita Datta (Sen) Judicial Member:
The instant O.A. has been filed under Section 19 of Administrative Tribunals Act, 1985 seeking the following reliefs:-
"(A) An order do issue directing the respondent no.5 to delete the name of the applicant from the list of ineligible candidates prepared and signed on 06.11.2015;
(B) An order do issue directing the respondent to grant relaxation of age to the applicant in terms of the circular dated 06.06.2001 and 19.09.2011 and to appoint the applicant to the post of Craft Instructor (Music) on the basis of academic weightage of marks and experience.
(C) An Order do issue directing the respondent to treat the applicant at par with others similarly situated part time Craft Instructors appointed on regular basis;
(D) Any such order or orders be passed and or direction or directions be given as this Hon'ble Tribunal may deem fit and proper;
(E) An order do issue directing the respondent No.5 to produce the records of selection process before this Hon'ble Tribunal so that conscionable justice may be done;
(F) Cost and incidentals to this application."
2. The facts of the case in brief as stated by the applicant in the O.A. are as under:-
(a) The applicant was appointed on 19.03.2002 in the Directorate of Education under Andaman and Nicobar Administration as part time Craft Instructor(Music) on consolidated pay which continued uninterruptedly except technical breaks during summer vacations. Grievance of the applicant Digitally signed by SOMA BANDYOPADHYAY DN: C=IN, O=Personal, T=6794, OID.2.5.4.65= SOMA 133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S=West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN= SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.02.04 15:57:49+05'30' Foxit PDF Reader Version: 2024.3.0 3 is that her case was not considered for appointment against a regular post despite repeated representations/requests though she was eligible for the same as per rules. She had filed an O.A. before this Tribunal i.e. O.A.No.51/AN/2005, which was disposed of vide order dated 15.09.2005 with a direction to the respondents to consider the case of the applicant in the light of the earlier orders passed by this Tribunal on the same issue and to take steps to appoint her against a vacant post in terms of the Recruitment Rules.
(b) In the meantime, the respondents had notified Recruitment Rules for the post of Craft Instructor on 10.11.2004 and issued Recruitment Notice dated 08.07.2005 for recruitment against 5 posts of Craft Instructor (CI), Music. One, Shri Ram Prakash had filed O.A.No.112/AN/2005 challenging the Recruitment Rules and Recruitment Notice dated 08.07.2005, wherein the Tribunal at initial stage ordered that the appointment made would be subject to outcome of the O.A.No.112/AN/2005. The respondents had issued second Recruitment Notice for 07 posts of CI Music on 20.06.2006.
Then one Miss T. Jayashree had filed O.A.No.71/AN/2006 challenging the Recruitment Rules with the prayer to set aside the selection process. Finally, the O.A.No.112/AN/2005 and O.A.No.71 of 2006 were disposed of vide a common Order dated 24.05.2007 whereby the respondents were directed to follow the same drill as stipulated in the case of A.N. Shashtri vs. State of Punjab, 1988 Supp SCC 127. Thereafter Ram Prakash, the applicant in O.A.No.112 of 2005 and Mrs. T. Jayashree, applicant in Digitally signed by SOMA BANDYOPADHYAY DN: C=IN, O=Personal, T=6794, OID.2.5.4.65= SOMA 133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S=West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN= SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.02.04 15:57:49+05'30' Foxit PDF Reader Version: 2024.3.0 4 O.A.No.71/AN/2006 were given regular appointments on 27.06.2008 and 22.04.2009 respectively without undergoing any selection process.
(c ) In the present case, pursuant to the order of the Tribunal dated 15.09.2005 in O.A.No.51/AN/2005, the Director of Education rejected the case of the applicant vide order dated 08.12.2005. The applicant filed a contempt petition No.CPC 8 of 2005 against the said order on the ground that the Director of Education had not passed the order in strict compliance of the order of this Tribunal. Said C.P. was dropped by this Tribunal vide order dated 22.12.2005 by granting liberty to the applicant to challenge the selection process. Thereafter the applicant had filed O.A.No.66/AN/2008 before this Tribunal praying for regularization of her service as Craft Instructor (Music) under the respondents, which was disposed of by this Tribunal vide Order dated 10.12.2008 with a direction that the applicant be given a further chance in the next selection as and when it would be notified provided she was otherwise eligible as per the provisions of the Recruitment Rules and till such selection was made and a regular selected candidate was appointed, the applicant should not be disturbed.
(d) The respondents issued Recruitment Notice in September, 2009 for filling up the back log vacancies i.e. 7 posts of Tailoring and Embroidery and 1 post of CI Music. The applicant applied for the post of CI, Music on 23.10.2009, but to no avail. On 20.04.2015 the respondents issued fourth Recruitment Notice. Thereafter the respondent authorities excluded the applicant from selection process on the ground of over age vide Order dated 06.11.2015. Hence this O.A. Digitally signed by SOMA BANDYOPADHYAY DN: C=IN, O=Personal, T=6794, OID.2.5.4.65= SOMA 133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S=West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN= SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
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3. The respondents have filed written reply refuting the claim of the applicant.
In the reply the respondents have stated as under:-
(a) Pursuant to the Order of this Tribunal dated 15.09.2005 in O.A.51/AN/2005, the case of the applicant was considered in terms of the Recruitment Rules and a speaking order dated 08.12.2005 was issued rejecting her case on the ground that she could not qualify in the selection for the post of Craft Instructor(Music) as per the Recruitment Rules.
Thereafter the applicant had filed a Contempt Petition i.e. C.P.No.08/AN/2005 before this Tribunal which was dropped vide order dated 22.12.2005 with liberty to file a separate O.A. The applicant had filed another application being O.A.No.66/AN/2008 before this Tribunal which was disposed of vide Order dated 10.12.2008 with a direction to give the applicant a further chance in the next selection as and when it would be notified provided she was otherwise eligible as per the provisions of the Recruitment Rules and till such selection was made and a regular selected candidate was appointed, the applicant should not be disturbed. As per the respondents, in the said order it was observed in the preceding paragraphs that only because one had continued for a long time on casual or part time basis, it would not confer any legal right on such part time or ad hoc appointee to get regular appointment. In the said order, the judgment of Hon'ble Supreme Court in case of State of Karnataka Vs. Uma Devi , 2006(4)SCC 1 was referred to and it was observed that irregular appointment cannot be regularized and a casual or part time employee has Digitally signed by SOMA BANDYOPADHYAY DN: C=IN, O=Personal, T=6794, OID.2.5.4.65= SOMA 133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S=West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN= SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.02.04 15:57:49+05'30' Foxit PDF Reader Version: 2024.3.0 6 no right to get regular appointment without going through the process of recruitment.
(b) The respondents have further stated that the applicant could not succeed in the selection process, therefore, her case could not be considered for regularization/recruitment. The respondents have also stated that this Tribunal has not granted any stay order in respect of Recruitment Notice and after publication of the last Recruitment Notice in the year 2015, the applicant had not prayed for her regularization, therefore, her case could not be taken into consideration. Therefore, this O.A. is not maintainable and is liable to be dismissed.
4. The applicant has filed a rejoinder reiterating the same as stated in the O.A.
5. At hearing, Learned counsel for the applicant has submitted that admittedly the Tribunal has not issued any direction to regularize the part time appointment of the applicant but it has not prevented the authorities from treating her at par with the applicants in other similar O.As. Learned Counsel for the applicant has further submitted that pursuant to the common Order dated 24.05.2007 in O.A.No.112/AN/2005 and O.A.No.71/AN/2006, the applicants who were also similarly situated with the applicant in the instant O.A., have been given regular appointments as per the selection process commenced with the advertisement dated 08.07.2005 but case of the applicant for regularization/recruitment was not considered in proper manner. Finally, her name was listed in the list of ineligible candidates on flimsy ground of overage vide order dated 06.11.2015, which is biased, cryptic and contrary to the principles of natural justice. Digitally signed by SOMA BANDYOPADHYAY
DN: C=IN, O=Personal, T=6794, OID.2.5.4.65= SOMA 133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S=West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN= SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
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6. Learned Counsel for the respondents has relied on the reply and has submitted that as per orders of the Tribunal, the case of the applicant was considered as per the Recruitment Rules, but finally her case was rejected on the ground of overage. The Learned Counsel for the respondents further submitted that the applicant has got no legitimate right to claim either for regularization of her part time service against the regular post of Craft Instructor (Music) or for age relaxation beyond the permitted limit after getting declared ineligible by the Department and there was no violation of rules and regulations while considering the case of the applicant, therefore, this O.A. should be dismissed.
7. Heard the Learned counsel for the parties and perused the materials placed on record.
8. Admittedly, the applicant was appointed as Part Time Craft Instructor (Music) on consolidated pay on 19.03.2002. She had filed O.A.No.51/AN/2005 which was disposed of vide order dated 15.09.2005 (Annexure A/8 to the O.A.) with a direction to the respondents to consider the case of the applicant in the light of the earlier orders passed by this Tribunal on the same issue in O.A.No.27/AN/1997, O.A.No.151/AN/1999 and O.A.No.107/AN/2003 and to take steps to appoint her against a vacant post in terms of the Recruitment Rules. In the meantime, Recruitment Rules for the post of Craft Instructor, Directorate of Education was notified on 10.11.2004 (Annexure R/1 to the Reply) through Gazette Notification, wherein the method of recruitment has been stipulated under Serial 11 which is as under:-
"11 Method of recruitment either direct or by : 100% by direct recruitment promotion or by deputation/transfer and percentage of the vacancies to be filled in Digitally signed by SOMA BANDYOPADHYAY DN: C=IN, O=Personal, T=6794, OID.2.5.4.65= SOMA 133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S=West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN= SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.02.04 15:57:49+05'30' Foxit PDF Reader Version: 2024.3.0 8 by various methods"
Thereafter one Notification dated 08.07.2005 inviting applications for filling up the posts of Craft Instructor was issued with closing date on 26.07.2005, wherein age limit for appointment as Craft Instructor for female employees was mentioned as 10 to 37 years (Relaxable upto 5 years in case of Government servant/ST). In the meantime, one Shri Ram Prakash Tiwari and Mrs. T. Jayashree had challenged the Recruitment Rules published on 10.11.2004 and the Recruitment Notice dated 08.07.2005 before this Tribunal by filing O.A.No.112/AN/2005 and O.A.No.71/AN/2006 which were disposed of vide a common Order dated 24.05.2007 wherein judgment of Hon'ble Apex Court in case of A.N. Shastri vs. State of Punjab, 1988 Supp SCC 127 was referred to and the respondents were directed to follow the same drill as followed in case of the applicant in the said case.
9. In the instant case, pursuant to the Order of the Tribunal dated 15.09.2005, the Director of Education, Andaman and Nicobar Administration rejected the case of the applicant vide Order dated 08.12.2005. Thereafter the applicant had filed a Contempt Petition i.e. C.P.No.08/AN/2005 before this Tribunal which was dropped vide order dated 22.12.2005 with an observation that "Since the posts are selection posts, Director, Education has stated that all the three candidates have been selected according to merit. Therefore, we find no reason to hold that there is contempt of order by respondents. However, applicant would be at liberty to question the selection." Pursuant to the said order of this Tribunal, the applicant had filed another application being O.A.No.66/AN/2008 before this Tribunal which was disposed of vide order dated 10.12.2008 with the following directions:- Digitally signed by SOMA BANDYOPADHYAY
DN: C=IN, O=Personal, T=6794, OID.2.5.4.65= SOMA 133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S=West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN= SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.02.04 15:57:49+05'30' Foxit PDF Reader Version: 2024.3.0 9 "5. On going through the documents placed on record, we find that although the applicant was already given an opportunity to take part in that selection process for regular appointment held on the last occasion, but she could not come out successful. The ld. Counsel for the applicant has pointed out that there are still vacancies and, therefore, the applicant's case may now be considered against the said vacancy. However, it is now held by the Hon'ble Supreme Court in the case of State of Karnataka Vs. Uma Devi, 2006(4) SCC 1 that irregular appointment cannot be regularized and that casual or part time employee does not have a right to regular appointment without following the due process of recruitment. Only because one is continuing for a long time on casual or part time basis does not confer any legal right on such part time or ad hoc appointee to get regular appointment.
6. In view of the legal position stated above, no direction can be issued to the respondents to regularize the part time appointment of the applicant. However, since the applicant has been continuing for a long time and even after her failure in the last selection she has been allowed to continue, we dispose of this O.A. with a direction that the applicant be given a further chance in the next selection as and when it will be notified provided she is otherwise eligible as per the provisions of the recruitment rules and till such selection is made and a regular selected candidate is appointed, the applicant may not be disturbed. We are passing this order in view of the dictum laid down by the Hon'ble Supreme Court in the case of Hargurpratap Singh Vs. State of Punjab, 2008(2)SCC (L&S)618 that one ad hoc appointee should not be displaced by another ad hoc appointee because such ad hoc appointee has gained experienced, which will be more beneficial and useful to the organization, rather than to appoint persons afresh on ad hoc basis. The O.A. is disposed of accordingly. No costs."
Again another Recruitment Notice was issued in September,2009 for filling up the backlog 7 vacancies of Craft Instructors (Tailoring and Embroidery) and one post of Craft Instructor (Music). The applicant applied for the post of CI, Music pursuant to the said Notification. Thereafter the respondents had issued Recruitment Notice dated 20.04.2015 for filling up of 9 posts of Music Vocal/Instrumental. As per the said Recruitment Notice and the Recruitment Rules prevalent at that time, the applicant was not found eligible due to her over age even after getting 5 years' age relaxation because at that point of time her age was 46 years whereas the age limit for female candidates for CI, Music Vocal/Instrumental was 18 to 38 years as per the said Notification. Digitally signed by SOMA BANDYOPADHYAY
DN: C=IN, O=Personal, T=6794, OID.2.5.4.65= SOMA 133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S=West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN= SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.02.04 15:57:49+05'30' Foxit PDF Reader Version: 2024.3.0 10
10. On perusal of the above, it is clear that though the applicant had on earlier occasion asked for regularization, her request was turned down by this Tribunal vide order dated 10.12.2008 which was not challenged before higher forum and, therefore, the judgment of the Tribunal has attained finality. However, as per direction of this Tribunal, she was permitted to apply on four occasions against different Recruitment Notices and she did not qualify though she participated in the examination. Finally, at the time of publication of last Notification in 2015, she was found overage as her date of birth is 03.05.1969 and as on 29.05.2015 she was 46 years old. As per the said Notification, age limit for female candidates was 18 to 38 years (Relaxable upto 5 years for Government servants/ST candidates and 3 years for OBC candidates), therefore, even after getting age relaxation she was not found suitable for the post.
11. The Hon'ble Apex Court in case of UNION OF INDIA & OTHERS Vs. ILMO DEVI & ANOTHER (Civil Appeal Nos.5689-5690 of 2021) referred to some of its earlier decisions in the case of State of Karnataka v. Umadevi (3)[(2006)4 SCC 1], State of Maharashtra and Another Vs. S. Bhonde & Others, (2005) 6 SCC 751 and also some other relevant judgments on the same issue and observed as under:-
"8.7 Thus, as per the law laid down by this Court in the aforesaid decisions part-time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any permanent continuance of part-time temporary employees as held. Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the equal pay for equal work." Digitally signed by SOMA BANDYOPADHYAY
DN: C=IN, O=Personal, T=6794, OID.2.5.4.65= SOMA 133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S=West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN= SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
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12. In view of the aforesaid discussions, it is clear that part time temporary employee has no legal right to be regularized in view of the dictum of Hon'ble Supreme Court in ILMO DEVI supra. We find that the applicant is not entitled to get age relaxation as per the Circulars dated 06.06.2001 and 19.09.2011. As per the law laid down by Hon'ble Apex Court in various judgments, one cannot challenge the selection process after taking part in the same. Since the applicant had appeared in the selection process, she has lost her right to challenge the same and claim appointment afterwards. Therefore, the claim of the applicant for appointment as Craft Instructor was rightly turned down by the respondents as per rules. No interference of the court is called for in this matter in view of the judgments of the Hon'ble Supreme Court as mentioned supra.
13. Accordingly, the O.A. is dismissed. No order as to costs.
Suchitto Kumar Das Urmita Datta (Sen)
Administrative Member Judicial Member
sb
Digitally signed by SOMA BANDYOPADHYAY
DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=
SOMA
133596418541584061RzFJVlZ8C5fhN1, Phone=
248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S=West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN= SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.02.04 15:57:49+05'30' Foxit PDF Reader Version: 2024.3.0