Central Administrative Tribunal - Mumbai
Minal Mangesh vs Prasar Bharti on 27 September, 2023
. Central Administrative Tribunal Mumbai Bench, Mumbai. MA No. 876/2023 in O.A. No. 540/2021, PNB Th. 8 8 PPS ONIN OF Order Reserved on 14 September, 2023. Tea ae Usa nunpad maid aed nee ee As Larder Pronounced ormsSeptember, 2025. Hon'ble Justice Mr. M.G. Sewlikar, Member (J) Hon'ble Dr. Bhagwan Sahai, Member (A) 'Smt. Minal Mangesh Toraskar, Age 55 years, Wife of Mangesh Mohan Toraskar, working as Lower Divisional Clerk, in the olfice of Additional Director General (Enge.), All India Radio & Doordarshan, Residing at: 1403-Rosewood, E-2, Yogi Dham, OO! Kalyan-Murbad Road, Kalyan (West), Thane: 421301, Mob. No. 7/1 3030927, Email: [email protected]. . Applicant (By Mir. V.A. Nagrani, Advocate} Versus 1. Union of India, Through the Director General, All India Broadcasting Corporation of India, Aakashwani Bhavan, Parliament Street, New Delhi-1 10001, The Additional Director General (Enge.) ( West Zone), All India Radio & Doordarshan, AcA Building, Doordarshan Campus, Worll, Mumbai-1. bs .. Aespandents (By Mr. A.M. Sethna, Advocate} Per: Hon'ble Mr. Justice M.G. Sewlikar, Member (J)
ORDER Ll. Facts in nutshell are that the applicant has passed 10% Standard and has also undergone typing course in Hindi and English languages. She had registered her name in Regional Employment Exchange, Mumbai, The applicant was sponsored by the Regional Employment Exchange, Mumbai to the office of respondent no, 2 for the post of clerk eum typist. The applicant participated in the selection process and was offered appointment as clerk cum typist purely on ad-hoc basis with effect from 18" August, 1989. She worked on the said post till 31° October, 1991 with few technical breaks mention of which is made in para. 4.1. of the OA. In the year 1999, one post of Hindi typist was lying vacant in the office of Chief Engineer (West Zone), All India Radio & Doordarshan, Mumbai. The post of Hindi typist was to he filled on regular basis through Staff Selection Commission SEC' MOSvOVEr, On account of delay in recruitment through SSC, the office of Chief Engineer (West Zone), All India Radio & Doordarshan, Mumbaj sent a requisition to Regional Employ ment Exchange for ¢ sponsoring candidates POSSessing requisite ef erieria for appointment. to the post of Hindi Typist.
12. The name of the applicant was Sponsored by Revional | Employ ment Exel ange, Mumbai for the post of Hindi Typist. The applicant Participated in the selection process and competed with other eligible candidates and was selected. The office order dated 20" Noy ember, 1991 came to be issued appointing the applicant on the post of Hindi Typist in the pay scale of Rs. 950. 20-1500. The appointment order states that the vacaney against which the applicant was apy pointed was purely on ad-hoc basis and U1 such time 4 candidate nominated by SSC was posted against the vacancy, 'The applicant accepted the offer of appointment and jomed the duty on 2gth November, 199]. Subsequenily, appointment order dated 136 December, 199] was issued to the applicant appointing her as Hindi typist with elect from 29th Nove ember, 199] ay further orders.
1.3. The candidates selected by SSC for the post of Hindi typist reported for duty on 18" Ay gust, 1992. A memorandum dated 18" August, 1992 by respondent no. 02 was issued to the applicant directing the a pplicant to work as Clerk Grade-Il ay further orders on the same terms and conditions as stated in the letter dated 13% December, 1991. The applicant was possessing the requisite qualification and all other eligibility criteria for the post of Clerk Grade--tr, Applicant made numerous
-tepresentations for regularization of her services. Despite that her services were not regularized. Therefore, she had filed OA No, 280/2017 in this Tribunal. This OA was disposed of by this Tribunal by order dated 11" April, 2019 directing respondent No. | to consider the representation dated 10" August, 2016 of the applicant keeping in view various letters and reminders from respondent no. 2 and pass an appropriate order Within 10 weeks from the date of receipt of certified copy of the order. Pursuant to this order, respondent No. 2 vide order dated 23" December, 2019 rejected the representation of the applicant for regularization of her Services, This order is impugned in this DA,
14. It is the contention of the applicant that her initial or oer x oe. ene oe x RPP RATR Pret cmt oo aS EY ENS PV re ee ey ere TOUR CT Ce rSeSheaw chey AUNTS SSA SARS LASS LSS SETS: AS ASMSS SUS WSS rade ath tO MOSM VYER ES Gis process of law; therefore, her appointment cannot be treated as a back door entry, The applicant has been working since the year i991. She has served more than 20 years in the department, > Therefore, it is a fit case for regularization of her services.
gw i3. Respondents filed their reply contending therein that the appointment of the applicant was purely on ad-hoe basis and the appointment order itself made it clear that she will not be having any right for regularization/ absorption in the department, Her appointment was S purely on ad-hoc basis till such time a candidate nominated by SSC against the said post was appointed, A candidate nominated by SSC for the post of Hindi Yypist on regular basis was appointed and he reported for duty on 18" August, 1992. The applicant was allowed to work as Clerk Grade-Il all farther orders on the same terms and conditions as stated in the letter dated 13% December, 1991 i.e. purely on ad-hoc basis and that she will not have any right for regularization/absorption in the department. Therefore, it was 1.6. Respondent No. 62 allowed the applicant to work on the post of Clerk Grade --I] only on sympathetic ground. Her entry was a back door entry. They, therefore, prayed for dismissal of the OA.
1.7. Applicant filed rejoinder but no new point has been raised in the rejoinder.
1.8. We have heard Mr. V.A, Nagrani, learned counsel for the applicant and Mr, A.M. Sethna, learned counsel for the respondents.
1.9. Mr. V.A. Nagrani, learned counsel for the applicant submitted that the applicant was appointed on ad-hoc basis 4} appointment by SSC was made. Her appointment was in accordance with the rules prevalent at that time. Names were called from employment exch ange and name of the annlicant Was Sponsored by the employment exchange for the post of Hind! Typist. After completion of selection process, the applicant was appointed as Hindi T ypist. He contended that thus made after obeying the due process of law prevalent at that time, He contended that the rules produced by the respondents cle early State that the mode of recruitment for Clerk Grade-ll/Hindi Typist is through SSC/R Emple oyment Exchange. He submitted 'that the qualifications for Clerk Grade-IT and Hindi Typist was the same. Since initial entry of the applicant was legal and since qualification for the post Clerk Grade-J] and Hindi Typist is the same, her appointment on the post of Clerk Grade-ll also becomes legal. Since, he ot init ial appx aintment was. legal, it is not permissible for the respondents to say that it was a back door eniry. He submitted that the applicant worked for more than 20 years in the department, Before te minating her services, the respondents ought to have issued a show cause notice to her but the respondents did not follow this procedure. They directly terminated the services of the applicant. He submitted that appointment of the applicant was against regular vacancy for which the letter dated 24% April, 1998 bears a testimony. It shows that in the year 1992 there were 6 vacancies, there were 2003, again the same vacancy position was shown. Her name was recommended by the respondent No. 02 for regularization. However, regularization was not granted. For this purpose, he placed reliance on following cases:
(i) Narendra Kumar Tiwari and Others Vs. State of Jharkhand and Others, (2018) 8 Supreme Court Cases 238.
(i) Union of India and Others Vs. Central Administrative Tribunal and Others, (2019) 4 Supreme Court Cases 290.
(ii) Dineshbhai Dhudabhai Patel Vs. State of Gujarat, R/Special Civil Application Ne. 11518 of 2020, decided on 07"
| February, 2022.
02, Mr. A.M. Sethna, learned counsel for the respondents submitted that appointment of the applicant cannot be said to be regular by following due procedure of law. She was appointed on ad-hoc basis till such time a regular candidate nominated by SSC was made available. He was appointed on 18" August, ae Said Rs Neier hoa changers en sia Seeheygoe to re a Soares Sry be hiy: wt Ve aye ae vee GRECO, DOP Srvices GA tO OO iCMaiod, Ol Obi BELO PENT SALES pas sympathetic ground she was permitted to work as Clerk Grade- Hi because of her letter dated OL * May, 1992 in which she mentioned that due to non-availability of permanent: job anywhere else, she kept engaged in this office and now because she has crossed 25 years, it is quite impossible to get permanent rw.
job. In this letter she flrther mentions that because of this service only her father could process the initial formalities of her marriage. She, therefore, ¢ requested to consider her case sympathetically and offer her the post of Hindi Typist on permanent basis. He submitted that no rules were followed while appointing the applicant as Clerk Grade-Il. Her appointment is, therefore, not legal but it is illegal, 4.1. The learned counsel! further submitted that the advertisement for the post of Clerk Grade-II was not given, no applications from employment exchange or SSC was called and, therefore, her appointment is illegal. For this purpase, he placed relance on following cases:
( Seeretury, State of Karnataka & Ors. v. Umaidevi (3) (2006) < sce dhe 18 G2) Stete of Bikar Vs. Chandreshwar Pathak, MANU/SC/0671/2014, decided on 07" August, 2014,
(ii) Jashvanthumar 3. Desai Vs. Sabarkantha District Panchayat, MANU/GI/0964/2000, decided on 10" November, 2000.
x (fy) Welngenga Behuuddeshive Vites Sanstha sirouck President BB. Karanjekar & Ors. ¥s. Ku. Java & Ors., Chil Appeul Ne. 6226 of 2019 (Arising out of SLP (Civil) No. 4314 of 2018). BAd, 9.82019.
2.2. We have carefully considered the submissions made bv the Pa e learned counsels for the respective parties.
2.3, The contention of the applicant is that there were sanctioned posts. That contention is buttressed by the letter dated 24 April, 1998, In which vacancy position of Clerk Grade-2 is mentioned. The respondents have also admitted in their reply at para 5 (e) that there were a number of vacancies available with respondent no. 2, Thus, this goes to show that there were sanctioned posts.
24. The question involved in this OA is whether the appointment of the applicant was irregular or illegal. The facts are not in dispute. The applicant was initially appointed as Hindi Typist. At that time requisition was called from employment exchange. Employment exchange had sponsored the applicant. Accordingly, she was appointed as Hindi Typist. It was clearly which she is posted is purely on ad-hoc basis till such time a candidate nominated by SSC is posted against this vacancy and that she will have no right for regularization/ absorption in the department. It is thus clear that the appointment was purely on ad-hoc basis and it was made clear to her that she would not be entitied to regularization/absorption, 4.9. Thereafter, a regular candidate nominated by SSC was made available. Therefore, the services of the applicant as Hindi Typist came to be terminated | by order dated 18" August, 1992. Applicant was informed that subsequent to filling up of the post of Hind: Typist on temporary/regular basis with effect from 18% August, 1992, her representation for regularization had been forwarded to the Director General of All India Radio, New Deihi for consideration and by the same order she was directed to werk as Clerk Grade-IT tif] firther orders on the same terms 42 and conditions as conveyed by the order dated 13" December, 1991. This appointment order clearly shows that the appointment of the applicant was made without following due process of law. No advertisement was given, no names from employment exchange were requisitioned. Therefore, by no stretch of imagination, it can be said that the appointment of the applicant was regular. Her appointment to the post of Clerk Grade-2 was illegal. The submission that for Hindi Typist, due process of law was followed and, therefore, the appointment of the applicant to the post of Clerk Grade-IT amounts to appointment by following due process of law has no force. We cannot persuade ourselves to accede to this submission.
2.6, It is true that qualifications for the post of Hindi Typist and Clerk Grade-II is the same. However, that does not mean that due process of law should be given a go-by. Once a vacancy arises, it has to be filled by following due process of law, It is not permissible for anyone to say that since appointment was made for one post by following due process of law, no Sobyes fs Tip oo Pye scyiliaer aaynateteyené pa "ha PrUcecur PO TEAS: GO SOMUAVENS 2OT BYELSE appointment GER ie yen ce] similar post. This will be an arb ditrary action. This process was not followed. In the case of Secretary State of Karnataka y.
Umadevi (supra), in para $3 Supreme Court made following "33. One aspect needs to be clarified. There may be eases where irresular v pointments (not iegal appointments) as explained ta SF. Narayanapp nett? FM Nanfundappal? anid BN. Nagarajan? and referred fo in para £5 above, of duly qualified persons in chily sanctioned vacant posis might have been made and the employees have continued to work for ten years or more bur pate the intervention af orders of the owls or of iri! nisials, he question of regularisation of the services oF such GpiGvecs may have to be conisisored on merus In the light of the principles ted by this Court in the cases abovereferred to and in the light of this jidomene in that context, the Union of fefia, the Stare Govermnenis and their uistrumentalities should take steps to regularise as a He measure, ihe services of such irregularly appointed, who have worked for ten pears or mare in duly sanctioned posts but not under cover of orders of ie courts or of tribunals and she ould fig ther ensure thet regular recrufiments are welerraken to FUP thase vacant sanctioned posts tet require to be filled y (D. in cases where teniporar ¥ eBYHOVESS OF daily WawErs are Pets Ho *» employed. dhe process must be set in motion vituin six sionths from this daie. We also clarify that regrulorisel fion, If any already made, but net sub. jidice 4 teed not be reopened based on this pudement, but there should be no further bypassing oy the constitutional requirement and regularising or making Permanent, those not duly appointed as per the cvomsiiniional seheme."
i4 2.7, The next question that falls for consideration is whether the appointment of the applicant was irregular or illegal. Ip the ewe case of S¥are of Madhya Pradesh Vs. Lalit Kurrear Verna, TERA os <r ~~ yo; 4 3 < ay S ° 3 > 3 4) ~ ¢ i Sy Sad = .
: xy x € ee y ? & 3 x Pes ge OF Ceyyaet rr laimad ot < get Pee between irregular appointment and illegal appointment. In para 12 supreme court observed thus:
"22. The -- question which, thus, artes jor consideration, would be: Js there any distinction between Irregular dppouiment' and . 'leaal appointment'? The distinction benveen the two terms is apparent. In the event the appointment is made in total disregard af the constitutional scheme as also the recruliment rules framed by the employer, which is State' within the meaning ef Article 12 of the Constitution of India, the recruitment woud be an illegal one; whereas there may be cases where, although, substantial compliance with -- the constitutional scheme as alsa the rules have been made, the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to,"
2.8. These observations of the Apex Court make it clear that illegal appointments are those which are made in total disregard to the constitutional scheme as also the recruitment rules framed by the employer, which is 'State', The appointment would be irregular where substantial compliance with the constitutional a5 scheme as also the rules has been made, the appointment may be irregular in the sense that some € provisions of some rules might not have been strictly adhered to.
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post of Clerk Grade-IL, no rules were followed. Her a appointment was made totally in disregard of the rules. The respondents have produced the reeruliment rules for the post of Hindi Typist and Clerk Grade-Il. It provides that the appointment may be made through SSC/Employment Exchange. The applicant has not placed anything on record to show that her appointment was made by the SSC or her name was sponsored by the employment exchange. Therefore, her appointment was in violation of the reeruliment rules.
Q3. In the case of Nurendra Kumar Tiwari (supra), facts were different. In that case, admittedly, the appointments of the appellants were imegular. They had completed 10 years of service but the high court had taken a view that on the creation fa of State of Jharkhand they had not completed 10 years of vi i6 service. It was held that the State of Jharkhand was created only on 15% November, 2006 and, therefore, no one could have completed 10 years of service by cut of date ie. 16% April, 2006. In para 8, Supreme Co; rm made following observations:
"8. Ifa strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in forages | : . 2 , Umadevi (3), is to be taken into Consideration then no regularly appointed employee of the State of Jharkhand could ever he regularised since that State cume tito existence only on 15-1] -2000 and the cutopy date was fixed as 10-4-2006. Jy other words, in this manner the nervicious Practice of indefinitely continuing irregularly appointed employees wauld be Perpetuated contrary to the intent of the Constitution Bench,"
3.1. In the case of Union of India Vs. Central Administrative Tribunal (supra), the issue involved was totally different. Issue involved in that decision of Supreme Court was that despite the specific directions contained in the order of the Tribunal to observe seniority, persons who had been regularized and given permanent status were below the applicants (in that decision of Supreme Court) in the order of seniority, This is not the issue in the case at hand.
Be ™ 3,2 wag oe . From these Supreme Court decisions, it is clear that the appointment of the applicant was illegal and not irregular Therefore, in terms Supreme Court decision in the ease of = . > ' e cs SPE TTA INS co Se eR Oy OMT EdEQ?D rend oy FS PMUSGRIN S SOOO Ment was { 3.3. Mr VA. Nagrani, leamed counsel for the applicant submitted that the applicant has worked for more than 20 years and it will be unfair if she is terminated from service now. This aspect has been dealt with in the case of State of Bihar Vs. Chandreshiwar Pathak (supra). In para 9 to 16, Supreme Court observed thus:
"S. Learned Counsel jor the Re espondent supparted the impuecned order anc submitied Mat having regard to fhe fact that the Respondent had dread) served for 15 Years, termination of his services was not called for.
£8 The only guestion for consideration is whether fhe appointment of the Respondent made without any advertisement or selection precess can be cursidered fo de a valid appointment to a public post protected under Article 14 or 31] af the Consti tution of India?
. Gr due consiede ration, we are of the view that the ed ¥ iva hpnon judgment cannot he sustained for the reasons that follow.
fa. The arder of appointment, in the present case, is as fodé JO ae 18 in the light of the order passed by the inspector General of Police, Criminal dnvestigation Department, Bihar Patna, vide iis Letter No. 6/86 F3 Sh Chandeshwar Pathak, s/o. Sh. Devnarayam Pathak of Village Haraji, P.O araji, PS- Dimbara, District Chhapra was appointed as Constable temporarily from 14.01.1088 afternoon on the condition that fis previous character found satisfactory and as and wher necessary, his service shall he terminated without assigning ay FASO OF show cause. His pay scale shall be Rs. 425- 10565 EB-10-605 with the basic pay of Rs. #25/-. He has been allotted the CT Na. 300,
43. i is clear from the above order thet the appointment has been given only on the asking of the inspector General of Police. There is nothing ta shew that any advertisement was issued giving aepportiunity fo all eligible candidates to compete ar any selection Process was undertaken before appointment Gf the Respondent, 44, In State of Ovissa and Anr. v. Mamata Mohanty MANUSCOLIG2011 2 01 1} 3 SCC 436, if was observed as under:
APPOINTMENY/EMPLOYMENT WITHOUT ADVERTISMENT. io
35. At one tine this Court had been of the view that calling the names from employment exchange would curh to certain extent the menace of nepotism and corruption in public emplayment. But, later on, came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. in ether wordy there must be a notice published in the appranriate manner calling fer applications and all those who apply i response thereto should he considered fairly. Ever: i the mames of candidates are -- regnuisitioned from employment exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from ihe open market by eS advertising ihe vecuncies if HEWSPANENS Raving wide elreulation ar Ay sey . . tee ty, ee wae oe operon Axe ow GHMOUHCERUAN IP FGNIO @ad Fefevision as merely calling the names from the employment exchange does not meet the requirement of the seid article af the Coustiiution, (Vide: Delhi Develanment Horticulture Emplovees' Cnton vy. Delhi dAdew., State of Haryana v. Piara Singh, Excise Supdt. vo KBLN. Fisweshwara Rao, Arun Tewari. vy. Aula Adanseavi Shikshak Sangh, Binad Kionar Gupta v. Ram Ashray Mahoto, National Fertilizers Lid. v. Sonvir singh, Telecam District Manager v. Keshab Deb, State of Bihar vy. Upendra Narayan x Singh and State of MP, v. Mohed. hrahim).
36. Therefore, if is a settled legal Proposition that Ra person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment ts made by merely ueviting names from the ~ employment exchange or pultixe @ poate in ~~ the natice board etc. thar will not meet the requirement of Articles 14 and 16 of the Constinuton, Juntmeourse violates the mandates n Articles if and Is outine. Sussiu camise India as i deprives the candidates who are eligible for the Dost, from being considered. A person emplaved in violation of these provisions iy not entitled to any relief including salary. Per a valid and legal appointment mandatory compliance with the satd constiniional requirement is io be fulfilled The equality clause enshrined in Article 16 requires that every such appointment be made by an ODEN ws 20 advertisement as to enable all eligible persons fo compete on merit, iS. No contrary view of this Court has been cited on behalf of the Respondent. Mareaver, another Division Bench of the same High Court has upheld termination in sunilar matter as noted earlier against which SEP.
has been dismissed by this Court as mentioned earlier, #6. Accordingly, it has to be heid that in the absence of any advertisement or selection process, the appointment of the Respondent is not protected and could be validly terminated. Learned single Judee was justified in dismissing the wrif petition while the Division Bench erred in interfering with the same."
3.4. From this judement of the Apex Court, it is clear that mere length of service is not a criterion for regularization. Therefore, we do not find any infirmity in the order of the respondents, refusing the regularization of the applicant.
3.5. Mr. V.A. Nagrani, learned counsel for the applicant submitted that the applicant was terminated without giving any show cause notice to her. For this purpose, he placed reliance on the case of Dineshbhai Dhudabhai Patel Vs. State of Gujart (supra). In para 6, High Court of Gujarat held thus:
"6 Peewee sae e vane ee nance epee en aa 3.3. On a plain reading, i was a stigmatic action taken to terminate petitioner's service. Such an action couid 21 nat have been taken even though the petitioner was, a fixed 3 period employee withour Sivine the pe etiioner feed, eet be difedeged apportunity to oe and after holding re. regul lar departmental inquiry, The employer is mot Howed to hire and fire even Tf the employee, may be ad hoc or probationer, and the services cannot be be of pen on the ground of i ont SA BIVEN @ g6- bye t by one sire "Oh seoncduct by eosting stigma, without halding « regular inguir iin accordance with ihe principles of natural justice."
3.6. His submissions are not worth accepting. The order of fermination is a termin vation order simpliciter. It simply means that In pursuance of order dated 29" August, 2023, the service of the applicant is discontinued with immediate effect. It does not cast any stigma on the applicant. Therefore, there is no question of giving a show cause notice to the applicant.
3.7, My. V.A. Nagrani, leamed counsel for the applicant also aif _ placed reliance on. the case of Samad P. Shere Vs. Union of India (UD) and Ors, MANU/SC/167/1989, This ease has no application to the facts of the case at hand. In the case of Samat P. Shere (supra), the employer was not satisfied with the performance of the appellant viz. Sumati P. Shere. At no time on ;
she was informed about her inefficiency.
3.8. In the case at hand, there is nothing on record to show that the respondents were dissatisfied with the performance of the applicant. Applicant's service was not regularized, Her appointment was not in accordance with the rules. Therefore her services cannot be regularized.
3.9. In view of the above facts and circumstances, we do not find any infirmity of the respondents in refusing regularization of the applicant. Therefore, OA No. 540/2021 stands dismissed with no order as to costs. Pending MAs, if any, stands closed, (Dr. Bhaewah Satay ( Justice MAG. Sewlikar) Member (A) Member (J) facil