Calcutta High Court
State Of West Bengal & Ors. vs Ashoke Ranjan Chandra on 18 August, 1999
Equivalent citations: (2000)1CALLT58(HC)
Author: Ruma Pal
Bench: Ruma Pal
JUDGMENT
Ruma Pal J.
1. The Issue Involved in this writ petition ts whether the respondent No.1, an ad-hoc appointee could be regularised in service. The State Administrative Tribunal has held that he could and has directed regularlsntlon of the services of the respondent No.1. The petitioners have assailed this decision before us.
2. The situation arose because vacancies in the Cashiers and Assistant Cashiers office in the Commercial Taxes Directorate could not be filled up as Recruitment Rules had not been finalised. To meet the urgent need to fill up the existing vacancies, an order was passed on 18th July, 1994 by which the Governor authorised the Commissioner of Commercial Taxes, West Bengal to make ad-hoc appointment to the posts of Cashiers and Assistant Cashiers from amongst the existing eligible employees of the Commercial Tax Directorate pending finalisation of the Recruitment Rules.
3. In compliance with this order, the Commissioner wrote to the different branches of the Directorate of Commercial Taxes requesting them for names of Lower Division Clerks/Steno Typist Clerks/Bench Clerks-cum-Steno/ Qualified Record Supplier/Cashier workers/Group D staff who were willing to be considered for check-posts under the Directorate In the "pay scale of Rs. 1040-25-1 215-30-1 485-35-1 590-40-1 670-50-1 920 plus other allowances as admissible under the rules from time to time on regular basis".
4. The respondent No.1 was then a confirmed peon working under the Deputy Commissioner, Commercial Taxes, Midnapore Circle. His name along with others was forwarded for the purpose of being appointed to the post of Assistant Cashier.
5. By an office order dated 30th September 1994, five permanent peons/Lower Division Clerks Including the respondent No.1 were temporarily appointed in the post of Assistant Cashier for the check posts under the Directorate on ad-hoc basis for six months in the pay scale of Rs. 1040-25-1215-30-1135-35-1590-40-1670-50-1920 plus other allowances as might be admissible under the rules with effect from the date on which they Joined as such and until further order. The respondent No. 1 was released from his post and duly joined as Assistant Cashier on 21st October 1994.
6. In 1997, the Recruitment Rules were framed with effect from 19.09.97 for Inter atta the post of Cashier, Assistant Cashier and Cash Sarker under the Directorate of Commercial Taxes. The Rules were famed in exercise of powers under Article 309 of the Constitution of India. The methods and qualifications for appointment which are relevant for this case are follows:
"Assistant Cashier Ordinarily by promotion of qualified Cash Sarkar. When suitable departmental candidates will not be available by selection (direct recruitment) Must have passed Madhyamik Pariksha (Secondary Examination) of the Board of Secondary Education. West Bengal or its equivalent.
Cash Sarkar Ordinarily by promotion from the posts of Peons or by transfer from Record Suppliers who have experience in serving Accounts Deptt. Or, when suitable departmental candidate will be available, by selection (Direct recruitment)."
(i) Class VII-Pass certificates from a recognized school.
(ii) Experience in serving as peon or Record Supplier in Govt. Officer or undertaking.
7. The respondent No.1 claims that he Is qualified for the post of Assistant Cashier as he had passed the Madhyamlk Parlksha. The petitioners do not admit this and have said that in any event the post of assistant cashier was a promotional post from cash sarkar and that peons like the petitioner could not be treated as an Assistant Cashier. Accordingly by an order dated 9lh June 1998 the peons including the respondent No., 1 who were temporarily appointed to act as assistant cashier on ad hoc basis were reverted to the post of peon.
8. The respondent No. 1 challenged the order of reversion before the Tribunal. The Tribunal, which was constituted only by the Administrative Member, said that as the petitioner had allowed the respondent No.1 to continue for about 4 years, the respondent No.1 had acquired the "status of permanency". It was held that the Recruitment Rules did not have retrospective effect. The petitioners were directed to reinstate the respondent No.1 in the post of assistant cashier within 8 weeks and to pay all the consequential financial benefits to the respondent No.1 after adjusting the amounts already allowed to him.
9. The writ petitioners (who were the respondents before the Tribunal) have submitted that the appointment of the respondent No.1 was on ad hoc basis and expressly made pending the framing the Recruitment Rules. It was submitted that the respondent No.1 had no right to continue in the post once the Recruitment Rules were framed. Secondly it is submitted that the Tribunal had no jurisdiction to direct the appointment of the respondent No.1. Reliance was placed on the decision of Himachal Road Transport Corporation v. Dinesh Kumar; AIR 1996 SC 226. Finally it is submitted that the Administrative Member, sitting alone could not deal with the subject matter of the writ petition.
10. The respondent No.1 submitted that although Initial appointment was for six months, the respondent No. 1 had been allowed to serve for four years. It was contended that the Circular Letter calling for appointment sought for persons to be appointed as Assistant Cashiers on regular basis. In the circumstances it is stated that the respondent No.1 had a legitimate expectation to be appointed to the post. It is contended that the Tribunal had the jurisdiction to direct reinstatement of respondent No.1 and that the decision cited was Inappropriate as It applied to a situation where there was no vacancy. It was submitted that the existence of vacancy in the post of Assistant Cashier has not been dented.
11. The law on the subject has been recently authoritatively laid down in the case of J & K Public Service Commission & Ors. v. Dr. Narinder Mohan & Ors., . In that case the statutory rules had been violated while making the ad hoc appointment. The Supreme Court held that even though the appointees had served for about seven years, nevertheless they could not be regularised in service. It was said :
"Existence of statutory rules Is not a condition precedent to appoint an eligible and fit person to a post. The executive power is co-extensive with legislative power of the State and under Article 162, the State can create civil posts and fill them up according to executive instructions consistent with Articles 14 and 16 of the Constitution. It is settled law that once statutory rules have been made, the appointment shall be only in accordance with the rules. The executive power could be exercised only to fill In the gaps but the instructions cannot and should not supplant the law, but only supplement the law..... Therefore, an ad-hoc employee should be replaced as expedltlously as possible by direct recruits. A little leeway to make ad-hoc appointment due to emergent exigencies, does not clothe the executive Government with power to relax the recruitment or to regularise such appointment nor to claim such appointments to be regular In accordance with rules."
12. The decision has been subsequently followed in Surinder Singh Janmel v. State of J &. K, .
13. The Rule In this case, at the time of respondent No. 1's appointment, was contained in the order of the Governor dated 18.7.94. That rule only authorised the adhoc appointment to be made pending finalisation of Recruitment Rules. The Commissioner could not act beyond this authority. Thus assuming that the Circular called for applications for recruitment on regular basis, the same was wholly unauthorised.
14. In fact, the language Indicates that the words "regular basis" qualifies pay scales and other allowances and not the appointment. This is quite clear from the order appointing respondent No. 1 which has already been quoted. Furthermore, the language of the appointment order makes it clear that the appointment was not only ad-hoc but it was temporary and "until further order". There was as such no question of the respondent No. 1 harbouring any expectation that he would be regularised nor can the continuation of the respondent No. 1 as Assistant Cashier beyond the period of six months create any permanency of status,
15. Finally, mere cancellation of the order of reversion would not do. The respondent No. 1 cannot continue indefinitely as an ad-hoc appointee. The respondent No. 1's substantive appointment on a permanent basis did not take place in 1994. The substantive appointment will therefore have to be made now after the rules have been framed and in accordance therewith. There can be no dispute that according to the existing recruitment rules a peon cannot be an Assistant Cashier.
16. There is no question of retrospective operation of the Recruitment Rules. In State of Modhya Pradesh v. Dharm Bir : . In a somewhere similar situation It was said :
"Whether a person holds a particular post in a substantive capacity or is only temporary or ad-hoc is a question which directly relates to his status. It all depends upon the terms of appointment. It is not open to any government employee to claim automatic alteration of status unless that result is specially envisaged by some provision in the statutory rules. Unless, therefore, there is a provision in the statutory rules for alteration of status in a particular situation, it is not open to any government employee to claim a status different than that which was conferred upon him at the Initial or any subsequent stage of service.
Applying these principles to the Instant case, since the respondent, admittedly, was appointed in an ad-hoc capacity, he would continue to hold the post in question in that capacity. On the promulgation of Rules, therefore, the post of Principal which he was holding could not be treated to have been filled up on regular basis and had to be treated as vacant"
On the basis of the decisions of the Supreme Court in the State of J & K Public Service Commission (supra) and Slate of M.P. v. Dharam Bir (supra) It must be held that the respondent No. 1 cannot be directed to be regularised nor "reinstated". The order of the Tribunal is accordingly quashed and the writ application is allowed without costs.
Let xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.
S. N. Bhattacharjee J.
17. I agree.
18. Application allowed