Bimal Chandra Roy & Ors vs The State Of West Bengal & Ors on 27 September, 2019

[Cites 5, Cited by 1]

Calcutta High Court (Appellete Side)

Bimal Chandra Roy & Ors vs The State Of West Bengal & Ors on 27 September, 2019

This Writ Petition has been filed by the writ petitioners challenging the impugned order dated 26th September, 2017 rejecting their prayer for regularization and permanent absorption in service in question.

Relevant facts in brief in the instant Writ Petition are hereunder. There are five petitioners in this case. According to the writ petitioners they were engaged provisionally as Driver-cum-Conductor-cum-Mechanic on daily wages basis by the Calcutta State Transport Corporation.

Petitioner no. 1 Bimal Chandra Roy was engaged on 14th February, 2001 and discontinued by absence since 15.01.2007. Petitioner No. 2 Rajbrata 1 Singha was engaged on 29.12.2003 and is continuing. Md. Nazrul Islam petitioner no. 3 was engaged on 29.12.2003 and discontinued by absence since 16.12.2016. Gopal Chandra Das Petitioner No. 4 was engaged on 12.02.2001 and has discontinued by absence since 31.01.2019 due to attaining the age of 60 years. Biswanath Karmakar Petitioner No. 5 was engaged on 21.12.2003 and discontinued by absence since June, 2017. So the present position is that only Petitioner No. 2 is working. It appears from the appointment letters of the petitioners being Annexure 'P-1' to the Writ Petition that they all were engaged as route Driver-cum-Conductor/Driver-cum-Mechanic on contract basis provisionally, inter alia, it was specifically mentioned in the said engagement letter as follows:

"8. As adhoc extra temporary worker, you would have no claim for permanent absorption in service in the Corporation and the Corporation/the deport authority may strike out your name from the panels without assigning any reason and without any notice at any moment during the period of contract."

It appears that the petitioners had filed two Writ Petitions on earlier occasions being W.P. No. 19515 (W) of 2013 and W.P. No. 19517 (W) of 2013 for their claim of permanent absorption/regularization on the ground that they have worked for 720 days and 240 days duty per year for three years. The said Writ Petition was disposed of by directing the Managing Director of the Calcutta State Transport Corporation to consider the desirability of absorbing of the petitioners in regular service within three months. Pursuant to the said order of this Court the respondent Managing Director had taken a decision by its order dated 25th October, 2013 rejecting the claim of the petitioners for their permanent absorption. Challenging the said order of the Managing Director, dated 25th October, 2013 petitioners had filed another Writ Petition being W.P. 2 No. 37670 (W) of 2013 which was disposed of by order of this Court on 30th June, 2014 directing the authority to reconsider the case of the petitioners and to pass a reasoned order afresh within three months. Pursuant to the aforesaid order of this Court dated 30th June, 2014 the respondent Managing Director have considered the case of the petitioners and rejected their claim by passing the impugned order dated 26th September, 2014 which is as follows:

"In compliance with the direction of the Hon'ble Mr. Justice Soumitra Pal passed in W.P. No. 37670 (W) of 2013, Bimal Chandra Roy & Ors. Vs State of W.B. & Ors, the matter was taken up for consideration. The petitioners were heard in person.

Upon hearing the petitioners it transpires that the petitioners were engaged in the Corporation during the period from 2001-2004. They were identified with the designation of Driver-cum-Conductor-cum- Mechanic. They were put into work either as Driver or as Conductor or as Mechanic Helper in the Corporation. Their only grievance is that they should be regularised on completion of 720 days continuous service. But their claim was turned down by the CSTC authority.

                         It   appears    from     records   that        the

                  petitioners    were    engaged     as   daily        rated

worker to perform job as and when required by the Corporation in different categories. In the respective engagement letter of the petitioners it was clearly stipulated that their 3 engagement was on contract basis. The validity of this contract was initially for one year which might be extended upto seven years and the same on option of the parties may further be extended for two more years subject to their satisfactory performance in duty. The averments made in paragraph-3 of the writ petition and annexure P-2 are very confusing and misleading. Such averments do not support the engagement letter issued to them for such contractual engagement.

In fact, the petitioners were never appointed against any sanctioned posts. Their services were utilized purely on casual basis for functioning of different kinds of job as and when required for the interest of Corporation. This is guided by the terms and conditions of the engagement letter.

In the referred case law, State of Karnataka vs. M.L. Keshari the Hon'ble Apex Court observed that "..... the state governments and their instrumentalities should take steps to regularize as a one time measure, the services so such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be 4 filled up, in cases where temporary employees or daily wagers are being now employed." The Hon'ble Court then emphasized upon two conditions viz. (i) The employees concerned should have worked for 10 years or more and (ii) the appointment of such employees should not be illegal.

Admittedly, in the instant case, the appointment of the petitioners were made not against any sanctioned posts. As such, the appointment of the petitioners stands to be illegal. They ought to have been discontinued from the service of the Corporation as per contract.

The petitioners in earlier occasion moved writ petitions praying regularization of their services under the Corporation. Following the direction of the Hon'ble Mr. Justice Dipankar Datta dated 23.07.2013 passed in W.P. No. 19515 (W) of 2013 and W.P. No. 19517 (W) of 2013 of their grievances were taken up for consideration by the erstwhile Managing Director but their prayers were rejected.

The financial capability of the Corporation was extensively discussed and considered. The financial health of CSTC is not stable to bear the burden of salary and other statutory liabilities in respect of its employees from the surplus of its operation. 5 Without state subsidy it is impossible for CSTC to make its both ends met. The total earning of CSTC for the financial year 2012- 13 was Rs. 70.44 crores as against total expenditure of Rs. 210.54 crores. CSTC had to bear a total sum of Rs. 160 crores for making payments of salary to the members of its staff during the financial years 2012-13. In the financial year 2012-13, CSTC had incurred a loss of Rs. 148.10 crores excluding depreciation and interest on government fund and subsidy. During the financial year 2012-13, the state government has paid a subsidy of Rs. 151.34 crores. Till date the situation has not improved.

Moreover, the CSTC cannot create any post of its own. And as such no regular employment in the Corporation is possible. The position was explained to the petitioners in course of hearing and they admitted that fact. They also admitted that their appointments were not made against any sanctioned posts.

Hence, considering all the facts and circumstances of the case and with an eye to the referred case law I am constrained to reject the prayer of the petitioners.

The matter is thus disposed of.

6

                          Inform    all   concerned   including   the

                   petitioners."

Challenging the aforesaid impugned order, petitioners have filed the instant Writ Petition.

Learned Advocate appearing for the petitioners in support of his contention of regularization/permanent absorption has relied on the judgments of the Hon'ble Supreme Court in the case of State of Karnataka & Ors -vs- M.L. Kesari & Ors. (AIR 2010 SC 2587), Durgapur Casual Workers Union & Ors -vs- Food Corporation of India & Ors. reported in (2014) 42 SCD 162.

Learned Advocate appearing for the respondents has opposed the Writ Petition mainly on the ground that the engagement of the petitioners were purely temporary and on contractual basis and was not in a sanctioned post and contended that in the engagement letters of the petitioners the expression "interview" was nothing but an elimination process since the number of candidates applied for such temporary posts were much more than the number of persons required. He further contends that there was no assurance by the respondent corporation that after completion of any particular tenure as contractual worker, the petitioners would be absorbed as regular permanent employees and the respondent/corporation rather in their engagement letters has made specific stipulation that engagement was as "ad hoc extra temporary worker" and they would have no claim for permanent absorption in service. He further contends that claim of the petitioners that in past during the period 2007-09 the corporation have regularised some contractual appointees, it was a one-time scheme for permanent absorption for those who had been engaged on compassionate appointments as heirs of the employees who died-in-harness and had worked on the basis of such engagement for more than 10 years at the time of floating that scheme and as such the said scheme which is not in existence is not applicable to the case of the petitioners herein. He further supports the impugned order and its reasoning. He contends that the engagement of the petitioners were purely on contractual and on "no work no 7 pay" basis and their engagement were not made as per rules or prescribed norms for appointment and were not against any sanctioned post in the corporation. He contends that at present there is no scheme of the corporation in existence for regularisation of service and the right or claim of the petitioners made would accrue only upon introduction or floating of any such scheme in future for regularisation. He also contends that financial condition of the corporation does not permit it to take such burden of regularisation or absorption of the petitioners as prayed for.

Learned Advocate for the respondents in support of his contention has relied upon the following decisions:

(i) Secretary, State of Karnataka & Ors. -vs- Umadevi (3) & Ors

- (2006) 4 SCC 1

(ii) State of Karnataka & Ors. -vs- M.L. Kesari & Ors. - (2010) 9 SCC 247

(iii) State of Jammu & Kashmir & Ors. -vs- District Bar Association, Bandipora - (2017) 3 SCC 410

(iv) Renu & Ors. -vs- District & Sessions Judge, Tis Hazari Courts, Delhi & Anr. - (2014) 14 SCC 50 Learned Advocate for the respondents submit that in the facts and circumstances the petitioners could not make out any case for the relief of regularization or absorption in service and the judgments relied upon by the petitioners do not help the case of the petitioners. 8

He further submits that the exceptions carved out at paragraph 53 of the said judgment in the case of Uma Devi (3) (supra) wherein a direction was given to the Union of India, State Governments and their instrumentalities to take steps to regularise as a one-time measure of the services of irregular appointees who have worked for ten years or more in a duly sanctioned post, is not applicable to the case of the petitioners since such direction for framing a scheme for regularisation contained fulfilment of three essential conditions e.g.

(i) completion of 10 years service on the date of passing the said judgment, (ii) temporary or contractual appointments should not be illegal but irregular and

(iii) such temporary or contractual appointments should have been against duly sanctioned post whereas on the date of the said judgment none of the petitioners has completed 10 years of service, and none of them was engaged against any sanctioned post, and their engagements in terms of clarification made by the said judgment cannot be construed as appointments/engagements deserves for coming within the zone of such consideration for enlistment in a scheme for regularisation.

Learned Advocate for the respondents contends that exception to the general principle against regularisation enunciated inn Uma Devi (3) (supra) has been considered by the Hon'ble Supreme Court in paragraph 7 of the judgment of M.L. Kesari (supra) which is as follows:

"7. It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi (3), if the following conditions are fulfilled:

9

 (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         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



                 10
                                appointments are considered to

                               be irregular."

Learned Advocate for the respondents relies on paragraph 13 of the judgment of the Hon'ble Supreme Court in the case of Renu & Ors. (supra) which is as follows:

"13. A similar view has been reiterated by the Constitution Bench of this Court in State of Karnataka v. Umadevi (3), observing that any appointment made in violation of the statutory rules as also in violation of Articles 14 and 16 of the Constitution would be a nullity. "Adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment." The Court further rejected the prayer that ad hoc appointees working for long be considered for regularisation as such a course only encourages the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to compete."

He also relies on paragraph 26 of the judgment in the case of State of Jammu & Kashmir & Ors. -vs- District Bar Association (supra) wherein it has been held as follows:

"26. The principles will have to be formulated bearing in mind the position set out in the above judgments. Regularisation is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following the due process envisaged by Articles 14 and 16 of the Constitution. Essentially a scheme for regularisation, in order to be held to be legally valid, must be one which is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies. In all such cases it may be left open to Courts to lift the veil to enquire whether the scheme is aimed at achieving the above objective and is a genuine attempt at validating irregular appointments. The State and its instrumentalities cannot be permitted to use this window to validate illegal appointments. The second rider which must necessarily be placed is that the principle as formulated above is not meant to create or invest in a temporary or ad hoc employee the right to seek a writ commanding the State to frame a scheme for regularisation. Otherwise, this would simply reinvigorate a class of claims which has been shut out permanently by Uma Devi (3). Ultimately, it would have to be left to the State and its instrumentalities to consider whether the circumstances warrant such a scheme being formulated. The formulation of such a scheme cannot be accorded the status of an enforceable right. It would perhaps be prudent to leave it to a claimant to establish whether he or she falls within the exceptions carved out in para 53 and falls within the ambit of a scheme that may be formulated by the State. Subject to the riders referred to above, a scheme of regularisation could fall within the permissible limits of Uma Devi (3) and be upheld." 12

Considering the facts and circumstances of the case, submission of the parties, aforesaid judgments and bad financial condition of the respondent corporation which is running in loss and that the Writ Petitioner Nos. 1, 3 & 5 are not continuing with the job at present and the Writ Petitioner No. 4 has already attained the age of 60 years I direct the respondent corporation to consider for regularization of service of the Writ Petitioner No. 2 who was appointed on 29.12.2003 and has worked for more than 10 years and is still in the service of the corporation and whose appointment cannot be called illegal at best it may be called irregular in the facts and circumstances of the case. The respondent corporation shall consider the case of the Petitioner No. 2 for regularization of his service with effect from 29.12.2003 on notional basis without monetary benefit but shall be taken into account for pensionary benefit and petitioner shall be given all the service benefit as of a permanent employee from the date of his regularization and whole process of such regularization shall be completed within 12 weeks from the date of communication of this order.

The Writ Petition W.P. No. 32861 (W) of 2014 is accordingly disposed of and there will be no order as to costs.

Urgent certified photocopy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.

(MD. NIZAMUDDIN, J.) 13

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