Calcutta High Court (Appellete Side)
Mr. Shubha Dey ... For The vs M. L. Kesari [Air 2010 Sc on 12 April, 2012
Author: Nishita Mhatre
Bench: Nishita Mhatre
1
12.4.12
100 rp W.P.S.T. 1667 of 2008
Ms. Santi Das
Mr. Shubha Dey ... for the Petitioners
Ms. Chaitali Bhattacharya ... for the State
The petitioner is aggrieved by the decision of the West
Bengal State Administrative Tribunal dismissing the
original application filed by him. The petitioner claimed
regularisation in service as he had rendered more than ten
years of service on an ad hoc basis with the respondents.
While deciding the application the Tribunal found that:
1] the petitioner was appointed in 1992 on an ad hoc basis. His appointment was extended from time to time upto 2001.
2] there was no sanctioned post of mathematics instructor with the respondent-institute.
3] the petitioner was not sponsored by the employment exchange nor participated in any selection process.
Learned advocate for the petitioner has drawn our attention to the order dated 8/14th May, 1987, issued by the State Deputy Director of Technical Education, West Bengal which clearly indicates that one post of mathematics instructor was created in Fulia Polytechnic with effect from 1st April, 1987. Therefore, in our opinion, the finding of the Tribunal that there was no sanctioned post available for the mathematics instructor is incorrect.
The learned advocate for the petitioner has then relied on the judgment of the Supreme Court in the case of State of Karnataka and others Vs. M. L. Kesari [AIR 2010 SC 2587] in which the Supreme Court has explained its earlier judgment in the case of State of Karnataka Vs. Umadevi reported in 2006 (4) SCC 1. The Supreme Court has considered paragraph 53 of the judgment and has observed as follows:
"5. It is evident from the above that there is an exception to the general principles against 'regularization' enunciated in Umadevi (AIR 2006 SC 1806 : 2006 AIR SCW 1991), 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 2 court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously 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 appointments 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 10.4.2006).
"6. The term 'one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (AIR 2006 SC 1806 : 2006 AIR SCW 1991), 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 the post and if so, regularize their services."
The Supreme Court noticed that even after six months from the date of the decision in Umadevi's case which was decided on 10th April, 2006 cases of several daily-wage/ad hoc/casual employees were still pending before various Courts. "The one-time regularization process" was not commenced by the Government departments or instrumentalities of the State. The Court therefore observed that "the one-time" exercise will be concluded only when all 3 employees who were entitled to be considered in terms of para 53 of Umadevi's case are so considered. The Court then held that merely because the employer had not undertaken the exercise of regularization within six months of the decision in Umadevi or that the exercise was undertaken only with regard to a limited period, it would not disentitle the employees from being considered for regularization in terms of the directions in Umadevi's case as a one-time measure.
The learned advocate for the petitioner has submitted before us that the question of any selection process being undertaken would not therefore arise in view of the observations in para 53 of Umadevi's case which has been explained in Kesari's case. She submits that the petitioner continued in service continuously, albeit with artificial breaks, for more than ten years and therefore, was entitled to regularization in service.
This submission of the learned advocate for the petitioner was disputed by Ms. Bhattacharya, appearing for the State. She submits that the petitioner had not completed ten years of service and therefore, was not entitled to regularization notwithstanding the observations in para 53 of Umadevi's case and the decision in Kesari's case.
Admittedly the issue as to whether the petitioner had, in fact, completed ten years of service with the respondent- college, was not considered by the Tribunal as it ignored para 53 of Umadevi's case while rejecting the claim of the petitioner.
In these circumstances, we are of the view that the interest of justice would be sub-served if the matter is remanded to the Tribunal for a decision afresh. The Tribunal will decide the original application having regard to the observations of the Supreme Court in Umadevi's case. There can be no dispute today that there is a sanctioned post of mathematics instructor in the respondent-college.
In the circumstances, the impugned order is quashed and set aside. The Original Application no.2363 of 2006 is remanded to the Tribunal for hearing it afresh. We hope that the Tribunal will hear the matter expeditiously since the original application is of the year 2006.
The petitioner and the respondents are at liberty to place on record any further documents that may be required through supplementary affidavits.
4Urgent certified photostat copy of this order, if applied for, be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(Nishita Mhatre, J.) (Anindita Roy Saraswati, J.)