Allahabad High Court
Anil Kumar vs Central Administrative Tribunal Lko. ... on 2 March, 2017
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 3 Case :- SERVICE BENCH No. - 4718 of 2017 Petitioner :- Anil Kumar Respondent :- Central Administrative Tribunal Lucknow Bench, Lucknow and others Counsel for Petitioner :- Ramesh Chandra Saxena Counsel for Respondent :- A.S.G Hon'ble Sudhir Agarwal, J.
Hon'ble Ravindra Nath Mishra-II, J.
1. Heard Sri R.C. Saxena, learned counsel for petitioner at length, learned Standing Counsel for respondents and perused the record.
2. Petitioner has filed this writ petition assailing judgment and order dated 19.07.2016 passed by Central Administrative Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as "Tribunal") whereby Original Application No. 273 of 2016 has been dismissed.
3. The facts in brief which are evident from pleadings in this writ petition are that sole petitioner, Anil Kumar, filed Original Application No. 273 of 2016 dated 30.05.2016 before Central Administrative Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as "Tribunal") under Section 19 of Administrative Tribunals Act, 1985 (hereinafter referred to as "Act, 1985") seeking following reliefs:
"The Hon'ble Tribunal may graciously be pleased to quash the impugned order dated 5.10.2016 passed by Respondent No. 4, contained in Annexure No. 1 and also quash the oral termination of the applicant from the service w.e.f. 1.1.2010 declaring the same as non est for non compliance of procedure established by law as provided under Art. 21 of the Constitution and as a consequence of the above the applicant may be directed to be reinstated in service treating the period w.e.f. 12.1.2010 to the date of reinstatement as continuous service for all purposes with all consequential benefits."
(emphasis added)
4. Annexure-1 dated 05.10.2015, which is the order challenged before Tribunal, is an order passed by Director General of Audit, Post and Telegraph, Delhi in reference to petitioner's representation dated 16.08.2015 informing him that it is not possible to engage him as Daily Labourer in Post and Telegraph Audit Office, Lucknow. The authorities have informed petitioner that regular appointments to the post of MTS Posts have already been made and petitioner's application for such appointment was never received in the Office and this was already intimated to petitioner through his Counsel Sri R.C. Saxena vide letter dated 09.11.2012.
5. The case set up by petitioner in aforesaid Original Application is that he passed High School in 1989. His date of birth is 01.07.1973 and he is Chamar by caste which is a Scheduled Caste under Presidential Notification issued for the purpose of employment under Central Government. Regular post for clearing work of Office and file etc. are sanctioned in the office of respondent-3, Director, Post and Telegraph (hereinafter referred to as "DPT") but instead of making regular appointment, it used to employ daily wage casual Labourers with approval of Director General, Audit, Post And Telegraph (hereinafter referred to as "DGAPT"). Petitioner was also employed on daily wage basis as casual Labourer in January' 2005, in the Office of DPT. For engagement of Daily Wage Casual Labourer, DPT sought permission/ approval from DGAPT for the period of April' 2005 to July' 2005 vide Note dated 04.03.2005. Another such requisition for approval for engagement of four daily wage casual workers for three months was sought by DPT from DGAPT vide Note dated 17.03.2005. However, the said approval was granted only for engagement of two daily wage Labourers while three had expressed their objection to work as daily wage, i.e., Anand Kumar Sharma, Shiv Kumar Tiwari and Anil Kumar (petitioner). DPT passed order for engagement of petitioner as daily wage Labourer on 16.04.2005 pursuant whereto petitioner was engaged on 24.04.2005. Petitioner continued to work on Daily wage basis and requisite approval was obtained by DPT from DGAPT from time to time upto 31.12.2009. Payment of wages to petitioner was stopped with effect from 01.01.2010 though he continued to work and was assured that his wages shall be paid subsequently. However, when no such payment was made, petitioner submitted a representation/legal notice dated 03.11.2012 and another representation dated 17.01.2012 was submitted by speed-post. Petitioner vide letter dated 19.01.2012 was informed that his matter has been referred to Central Office and after receiving information, he shall be communicated. Thereafter by letter dated 25.01.2012 sent by DGAPT, petitioner through his Advocate, Sri R.C. Saxena was informed that for regular recruitment of MTS, entire data has been prepared but application of petitioner was not found received in the office. Again petitioner through his counsel sent a notice/representation dated 03.10.2012 wherein following prayer was made:
"In view of the above submissions, it is respectfully requested that my above named client may be allowed to continue as daily wages casual labour till he is not selected and appoint regularly. Your goodself may kindly also inform about the report which was furnished by the Dy. Director, Post & Telegraph, Audit, Sector H, Aliganj to Director General, Audit, Post & Telegraph, Sham Nath Marg, (Near old Secretariat), Delhi- 110402 and the orders passed their on by the Head Office regarding grant of approval sought for from the office of Dy. Director so that my client may be able to decide the future course of action." (emphasis added)
6. Vide letter dated 09.11.2012 sent by Office of DGAPT, petitioner was informed that regular appointments to the post of MTS have already been made and application of petitioner for consideration for regular appointment was not found received in the Office and this fact was already informed to him. Thereafter petitioner claimed to have sent a representation dated 16.08.2015 stating the was orally terminated with effect from 01.01.2010 after having allowed to work upto 31.12.2009 and this termination is illegal and, therefore, either he should be allowed to resume duty or shall take legal action. Operative part of representation dated 16.08.2015 is as under:
"In view of the aforesaid facts and circumstances, it is most respectfully requested that if the applicant will not be allowed to work against the post against which he was employed and allowed to continued upto 31.12.2009 treating his oral termination/discontinuance from service as illegal and void ab initio and also treating the period from the date of oral termination uptill now as continuous service, the applicant will be compelled to seek legal recourse as available to him in law." (emphasis added)
7. Another similar representation sent by petitioner is dated 24.05.2016 wherein also operative part of prayer/notice is as under:
"In view of the above it is most respectfully prayed that all the representations/legal notices dated 3.12.2011, 17.1.2012, 3.10.2012 and 16.8.2015 may be again decided by a reasoned order for the reason that only the issue of submission of application in pursuance to advertisement dated 26.3.2010 has been decided but the issue regarding allowing the applicant to continue as daily wages casual labour and the other issues regarding oral termination as mentioned in the above representations has not been decided at-all and the order dated 5.10.2015 which is also totally non-speaking and lacking reasons may be cancelled/withdrawn failing which the applicant will be compelled to seek legal recourse as available to him in law. " (emphasis added)
8. The earlier representation dated 16.08.2015 was replied by DGAPT vide letter dated 05.10.2015 and thereafter petitioner filed aforesaid Original Application under Section 19 of Act, 1985.
9. Tribunal has considered aforesaid application and looking to the admitted fact that petitioner was disengaged with effect from 01.01.2010, but had approached Tribunal by filing Original Application in May, 2016, found that in view of period of limitation prescribed under Section 21 of Act, 1985, Original Application was clearly barred by limitation and also observed that successive representations cannot extend period of limitation relying on a 2-Judges judgment in S.S. Rathore Vs. State of Madhya Pradesh (1989) 4 SCC 582.
10. Tribunal has also considered the matter on merits since it appears that counsel for petitioner argued matter at length referring to various authorities of Supreme Court contending that right to life and liberty is a fundamental right and same cannot be divested or denied on technical ground of limitation. Tribunal has held that petitioner was never appointed on any post following opportunity of employment offered to all similarly placed persons and after observing procedure of recruitment in accordance with law, i.e., advertisement of vacancies etc. In any case petitioner being only a casual daily wage employee, had no right to post, hence, question of his reinstatement or regularization does not arise, particularly when as per specific case set up by respondents, recruitment on regular basis was already made and petitioner never applied for such recruitment.
11. Sri R.C. Saxena, learned counsel for petitioner has reiterated his submissions before this Court which he argued before Tribunal relying on the judgment in Smt. Maneka Gandhi Vs. Union of India and another AIR 1978 SC 597, Olga Tellis Vs. Bombay Municipal Corporation AIR 1986 SC 180, Kharak Singh Vs. State of U.P. (1964) 1 SCR 332, D.K. Yadav Vs. J.M.A. Industries Ltd. 1993 SCC (L&S) 723 and so on.
12. In our view, Tribunal has rightly held that application of petitioner was barred by limitation and even otherwise on merits also, he has no right to claim continuity of his employment as a daily wage Casual Labourer or right of reinstatement etc.
13. We are clearly of the view that authorities cited and arguments advanced at great length before this Court also are thoroughly misconceived, hence have no application, in principle to facts of this case.
14. We find that sometimes matters are argued by learned counsel for petitioner(s) by relying on certain authorities, bereft of relevant facts and law, which were in consideration before Court in those cases and without looking into facts of their individual case and relevant provisions of law. This approach, many a times, not only causes an unnecessary harassment to poor litigant, who being a Labourer, obviously is not well aware of legal niceties, many a times follow advise tendered to him by counsel, and that is how continue to indulge in the process of litigation from one stage to another and waste his energy, time and also exhaust his funds, whatever may be available to him which obviously he may have arranged with great difficulty. A time has come when counsel must realize their obligation and duty to tender a correct and proper advise to litigants in respective cases which would not only avoid harassment to poor litigants but also save precious time of Courts also.
15. We find it appropriate to place on record and take judicial cognizance of the fact that Courts across the Country are choked with litigations, substantial part whereof includes cases which, if would have been scrutinized by counsels in their Chambers themselves, in a careful and appropriate manner, may not have come to Court. Almost every day, we find that a large number of cases coming to Court are based on no substantial ground or even otherwise try to raise dead or worthless issues or even otherwise can be said to be frivolous. This Court, i.e., Allahabad High Court at Allahabad and Lucknow, both, has almost 2.5 to 3 lacs cases instituted every year, in the last five years and substantial chunk thereof is dismissed in limine since cases involve either no issue worth adjudication by Court or are otherwise dead or litigants have rushed to Court at a pre-mature stage. Frivolous and groundless institution of cases is obviously a serious menace to the Institution of Justice which has obligation of imparting justice to all within a reasonable time. Such cases consume time and obstruct entire system and infrastructure. Courts are already facing multifarious constraints including lesser number of Courts, inadequate supporting staff and otherwise poor infrastructure. Still if residuary productive resources are allowed to be used for handling genuine causes, substantial justice and public interest in a better way may be served but such resources stand decapitated in attending cases filed only to take chance or sometimes to take benefit of delay by prolonging dead issues and worthless causes. It is high time when every stakeholder in the system of justice, must understand and cooperate, in serving purpose and objective of system in a more effective manner than wasting Court's time in the cases involving dead issues or worthless causes or otherwise frivolous matters.
16. Resuming and looking to the facts of case in hand, it is not in dispute that no process of recruitment was undertaken in 2005 inasmuch no vacancy was advertised, opportunity of equal employment for consideration was not extended to all eligible persons and in a back door manner, petitioner was employed as Daily-Wage Casual Labourer. Mere fact that he continued for about five years, in our view, would make no difference for the reason that initial engagement of petitioner, as is evident form the facts pleaded in writ petition, was patently illegal, being in violation of Rules of recruitment and appointment as well as Article 16(1) of Constitution of India.
17. Petitioner never faced any selection/ competition in the matter of employment as enshrined under Article 14 and 16 of Constitution. No vacancy was advertised whereagainst petitioner claimed to have been engaged or appointed as Daily Wage Casual Labourer. It is nowhere pleaded by petitioner, either before Tribunal or this Court, that any process of selection was conducted by respondents or any other authority before his alleged casual engagement. It is also not the case of petitioner that any letter of appointment was issued to him as issued to other regular employees. An appointment commences with letter of appointment but in the present case no such order is on record. In fact, it is admitted by counsel for petitioner, during course of arguments that petitioner was never engaged or appointed by issuing any letter of appointment.
18. In order to hold an office or appointment in State, or where funds are being released from State Exchequer for payment of salary to the appointees, it goes without saying that State has to make appointments following process of open recruitment, giving equal opportunity of consideration to all concerned. In other words, an appointment has to be made by State or its authority, following procedure, which is consistent with Article 16(1) of the Constitution of India. It includes advertisement of vacancies i.e. notifying to Employment Exchange, advertisement in newspaper and/or other means.
19. In State of Orissa and Anr Vs. Mamata Mohanty, 2011 (3) SCC 436, the Court said:
"....some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in Radio and Television ...."
20. Court further said that no person can be appointed even on temporary or ad hoc basis without inviting applications from all eligible candidates. In that case, appointments were made after notifying vacancies to Employment Exchange and putting a note on the notice board. Court condemned it and said:
"If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered."
21. Court went on to observe that a person appointed illegally or not employed after following procedure consistent with Articles 14 and 16, shall not be entitled for salary. The Court said:
"A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit." (emphasis added)
22. It is interesting to notice that in State of Orissa and Anr Vs. Mamata Mohanty (supra), Court also observed, if a person has continued to work, that by itself will not confer any right upon him since principle of "holding over" or concept of "adverse possession" is not applicable in service jurisprudence. Relying on earlier decision in Dr. M.S. Patil Vs. Gulbarga University and Ors., AIR 2010 SC 3783, Court said:
"The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour."
(emphasis added)
23. The above observations are attracted with full force in the case in hand where petitioner has not been appointed by respondents by complying Articles 14 and 16 of Constitution. Since petitioner is simply continuing to discharge certain duties, on that basis alone, he cannot claim any right, legally or constitutionally, else, it would be directly infringing constitutional mandate of Articles 14 and 16 of Constitution. An interpretation and a consequence, which may infringe a fundamental right and per se unconstitutional, cannot be conceived by Court. We cannot take a view, which would confer an illegal and unconstitutional benefit upon petitioner.
24. Appointments in public services are made in various ways. The purest form of appointment is one which is made following the procedure laid down in statute, consistent with Article 16 of Constitution of India. When a vacancy on a civil/public post is available, it is made known to every one, eligible and willing, to apply therefor, so as to be considered thereagainst. It conforms the fundamental right of equal opportunity of employment to all qualified and willing persons for such employment. When this opportunity is given and appointment is made after following procedure prescribed in statute, the appointment is absolutely just, valid and called purest form of appointment.
25. Then comes an appointment, where vacancies are advertised, consideration for employment is afforded to all qualified and willing but in the process of selection and appointment there is some procedural defect which may not affect the very appointment at its root. Such an appointment at the best can be an irregular appointment which would confer a right upon the appointee to continue and hold the post subject to subsequent rectification or validation by competent authority, expressly or impliedly.
26. Then comes an appointment, fortuitous in nature, made in certain exigencies. For example, a short term, stop gap, officiating, daily wage, etc., appointments, which normally is opted when requirement and tenure is precarious and by the time, procedure is followed, very purpose would stand frustrated. Such appointments are made normally by pick and choose method, i.e., whosoever come and apply, whether after getting knowledge on his own or otherwise, is given opportunity to serve for the limited purpose and tenure, which is called, sudden requirement and exigency of situation. Such appointments do not confer any right upon the appointee, either to hold post for a long time or to get the post in substantive manner. Above exception has been pleaded and allowed though it deprives right of equal opportunity of consideration to all eligible and willing persons by advertising the vacancy etc. only for the reason that requirement is sudden, tenure precarious and delay shall cause greater public loss. Otherwise, such appointments, in other words, comes in the category of illegal when tested on the anvil of Article 14 and 16 of the Constitution. One can say that applying doctrine of reasonable classification and considering fortuitous nature of requirement and process followed for its achievement, per se it may not be termed as illegal so long as that requirement is there but in case it is extended so as to confer a benefit more than such requirement, it will cross the dotted line of validity and will enter the realm of illegality. Such continued appointments have been held void ab initio and not entitled to confer any right upon appointee so as to claim a substantive right on the post in his holding, in whatever capacity, whether daily wager, officiating, ad hoc etc.
27. The maxim 'dura lex, sed lex', which means "law is hard but it is the law", in our view, aptly applies in the cases where incumbents have come to an office, not following procedure consistent with constitutional requirement of Article 16(1), but otherwise, and thereafter claim equitable and other consideration for sustaining their entry and occupancy of the office for all times to come. In Raghunath Rai Bareja and another Vs. Punjab National Bank and others, 2007(2) SCC 230 it is said:
"When there is a conflict between law and equity, it is the law which has to prevail . . . . . Equity can only supplement the law, but it cannot supplant or override it."
28. It has been followed in State of Uttaranchal and Anr. Vs. Rajendra Singh Kandwal 2011(5) AWC 5075 (SC).
29. In the matter of appointment there is no principle of adverse possession but a plea somewhat similar thereto, many a times, is raised that since one has continued to work for quite long time, now he should be allowed to stay in the office for rest of tenure otherwise his family would suffer. A situation is created where sympathy is sought not in favour of victims, i.e., those who were denied right of equal opportunity of employment but in favour of those who have violated law, contravened it, breached it with impunity, and, have continued to do so for quite some time, and now, boldly and blatantly claim a kind of right to retain such benefit of breach of law, for all times to come, and, for that purpose, various pleas in the name of equity, sympathy, compassion etc. are raised and pleaded. Many a times, it finds favour in Courts of Law. Fortunately, a Constitution Bench in Secretary, State of Karnataka and others Vs. Uma Devi 2006 (4) SCC 1, after having a retrospect of all earlier authorities, has taken a clear stand against such kind of favour shown to those who have come in public office, by denying right of equal opportunity to others. Court in unequivocal terms has observed that any favour shown to such violators would be a "misplaced sympathy".
30. In Union of India and others Vs. Vartak Labour Union, 2011(4) SCC 200, in para 16 of judgment, Court said:
"16. We are of the opinion that the Respondent Union's claim for regularization of its members merely because they have been working for BRO for a considerable period of time cannot be granted in 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 permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. (See: Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. (2006) 4 SCC 1; Official Liquidator v. Dayanand and Ors. (2008) 10 SCC 1; State of Karnataka and Ors. v. Ganapathi Chaya Nayak and Ors. (2010) 3 SCC 115; Union of India and Anr. v. Kartick Chandra Mondal and Anr.; Satya Prakash and Ors. v. State of Bihar and Ors. (2010) 4 SCC 179 and Rameshwar Dayal v. Indian Railway Construction Company Limited and Ors. 2010) 11 SCC 733."
(emphasis added)
31. In Brij Mohan Lal Vs. Union of India and others, 2012(6) SCC 502, dealing with Fast Track Courts, referring to Constitution Bench decision in Uma Devi (supra), Court said that therein the principle has been laid down that in matters of public employment, absorption, regularization or permanent continuance of temporary, contractual or casual daily wage or ad hoc employees appointed and continued for long in such public employment would be de hors the constitutional scheme of public employment and would be improper.
32. In University of Rajasthan and another Vs. Prem Lata Agarwal, 2013(3) SCC 705, after referring to the dictum in Uma Devi (supra), Court observed that when a person enters a temporary employment or gets engagement as a contractual or casual worker and engagement is not based on a proper selection as recognized by relevant rules/procedure, he is aware of the consequences of appointment being temporary, casual or contractual in nature. Such a person cannot invoke theory of legitimate expectation for being confirmed on a post when an appointment on the post could be made only by following proper procedure.
33. Recently in Amarendra Kumar Mohapatra and Ors. vs. State of Orissa and Ors., 2014(2) SCALE 589; Nand Kumar Vs. State of Bihar & Ors., 2014 (3) AWC 2378 (SC); Secretary to Government, School Education Department, Chennai & Ors. Vs. Thiru R. Govindaswamy and Ors. (2014) 4 SCC 769 and Director, Printing and Stationary Department, U.P. Government Press & Ors. Vs. Moti Lal and Ors., (2014)2UPLBEC1193, Court has reiterated and followed Constitution Bench decision in Secretary, State of Karnataka Vs. Umadevi (supra).
34. In Nand Kumar Vs. State of Bihar (supra), referring to Uma Devi (supra), Court said that daily wagers are not appointees in the strict sense of the term 'appointment'. They do not hold a post. They cannot therefore claim any benefit of regularization. Court observed:
"Appointment on daily wage basis is not an appointment to a post according to the rules. Usually, the projects in which the daily wagers were engaged, having come to an end, their appointment is necessarily terminated for want of work. Therefore, the status and rights of daily wagers of a Government concern are not equivalent to that of a Government servant and his claim to permanency has to be adjudged differently." (emphasis added)
35. The claim of petitioner, therefore that he has a right to hold the post and his oral termination amounts to violation of Article 21 of Constitution lacks substance and is rejected.
36. Now coming to question of limitation on which also Tribunal has rejected petitioner's Original Application, we find that under Section 21 of Act, 1985, there is a period of limitation, which is one year from date on which final order has been passed. In the present case, it is admitted case of petitioner that he was not engaged on and after 01.01.2010. No appeal or representation permissible under Rules was filed by him. Therefore, period of one year of limitation prescribed under Section 21(1) expired on 01.01.2011. The first representation claimed to have been made by petitioner is dated 03.12.2011 on which date, evidently limitation of one year prescribed under Section 21(1) had already expired. Once limitation expired, it will not revive merely on submission of a representation, whether statutory or non statutory. Regarding limitation under Section 21 of Act, 1985, matter has been examined by a 7-Judges Bench of Supreme Court in S.S. Rathore Vs. State of Madhya Pradesh (supra) and it has held, when statute prescribes a period of limitation, Tribunal can entertain a matter only within such period and not otherwise. It has also been held, when limitation is prescribed under a special Statute, general period of limitation prescribed under Limitation Act, 1963 (hereinafter referred to as "Act, 1963") shall have no application.
37. Even otherwise, subsequent representations made by petitioner will not help him in view of what has been held in para 21 of judgment in S.S. Rathore Vs. State of Madhya Pradesh (supra), which reads as under:
"21. It is appropriate to notice the provision regarding limitation under Section 21 of the Administrative Tribunals Act. Sub Section (1) has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under sub-section (3). The civil court's jurisdiction has been taken away by the Act and, therefore, as far as government servants are concerned, Article 58 may not be invocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58."
38. Learned counsel for petitioner placed reliance on a 2-Judges judgment in Assam Sanmilita Mahasangha vs. Union of India 2015 (3) SCC 1 wherein Court has considered question of delay and laches in entertaining a writ petition under Article 226 and not period of limitation prescribed by Statute for the purpose of entertaining an application by a Tribunal under a particular or special Statute, like Act, 1985. Therefore, aforesaid judgment, in our view, lends no help to petitioner.
39. In the result, we find no error apparent on the face of record in the judgment of Tribunal warranting interference.
40. The writ petition lacks merit. Dismissed.
41. No costs.
Dt. 02.03.2017 PS