Calcutta High Court (Appellete Side)
For The vs Uma Devi (3) & Ors on 19 August, 2009
Author: Dipankar Datta
Bench: Dipankar Datta
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19.8.2009 W.P. 12270 (W) of 2009
with
W.P. 12271 (W) of 2009
with
W.P. 12272 (W) of 2009
with
W.P. 12273 (W) of 2009
with
W.P. 12274 (W) of 2009
Mr. Arabinda Chatterjee
Mrs. Kakali Dutta
Mr. T. Sainik
...for the petitioners
Ms. Santi Das
Mr. K.L. Samanta
Mr. Gazi F. Hossain
Ms. Runi Chakraborty
...for the State respondents
These petitions involve common questions of law and fact and having been heard analogously, shall stand disposed of by this common judgment and order.
The Government of West Bengal throughout the State has set up various Industrial Training Centres (hereafter the said centres). These have been imparting training to industrial workers desirous of obtaining diploma in various industrial trades. The petitioners, in all these petitions, are functioning as Part-time Workshop Instructors in different trades in some of the said centres. They have been engaged in September, 2004. The last time their engagement was extended 2 for the session 2009-2010 was on 23rd September, 2008. Their prayer is for regularization of their respective services.
Mr. Chatterjee, learned counsel appearing for the petitioners, has invited the attention of this Court to a Circular dated 29th April, 2004 issued by the Director of Industrial Training, West Bengal. The circular lays down the procedure for engagement of Part-time Workshop Instructors. In particular, it provides for formation of selection committee, the qualifications required to be possessed by the Part-time Workshop Instructors as well as the selection procedure. According to him, all the petitioners came to be engaged as Part- time Workshop Instructors after they had responded to advertisements issued by the State respondents and had participated in a regular selection process, conducted in accordance with the terms of such Circular, wherein they acquitted themselves creditably. Despite being selected on merit through due process of selection, they have been made to continue for the last five years with artificial breaks in service so as to deny them right of being regularised in service. He further contended that it is not a case where the 3 petitioners entered service through the backdoor and, therefore, on the authority of the law laid down by the Apex Court in paragraph 53 of its decision in Secretary, State of Karnataka vs. Uma Devi (3) & ors., reported in (2006) 4 SCC 1, a direction for regularization of their services ought to issue.
This Court does not agree with Mr. Chatterjee that the petitioners are entitled to orders as prayed for. It would clearly appear from the Circular dated 29th April, 2004 that the arrangement for engagement of Part-time Workshop Instructors was purely temporary and would continue until the posts are filled up by Full-time Workshop Instructors. The advertisement, being Annexure 'P-7' to the first writ petition under consideration, clearly reveals that posts of Part-time Workshop Instructors in the said centres were sought to be filled up for which applications had been invited. No representation had been made to the public at large that those engaged on part- time basis would ultimately be considered for regularisation and/or absorption in service. It may be so that candidates, more meritorious than the petitioners, had not responded to the advertisement inviting applications considering 4 the policy of the State respondents to fill up the posts on part-time basis and not on regular basis.
In Official Liquidator vs. Dayanand, reported in (2008) 10 SCC 1, the Apex Court observed as follows:
"In this context, we may also mention that though the Official Liquidators appear to have issued advertisements for appointing the company-paid staff and made some sort of selection, more qualified and meritorious persons must have shunned from applying because they knew that the employment will be for a fixed term on fixed salary and their engagement will come to an end with the conclusion of liquidation proceedings. As a result of this, only mediocres must have responded to the advertisements and joined as company-paid staff. In this scenario, a direction for absorption of all the company-paid staff has to be treated as violative of the doctrine of equality enshrined in Articles 14 and 16 of the Constitution."
In Uma Devi (supra), the Apex Court in paragraph 43 laid down the law as follows :
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued 5 for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. *****"
(underlining for emphasis)
Inviting applications for engagement of Part-time Workshop Instructors cannot be equated with initiation of a regular process for filling up sanctioned posts of Workshop Instructors on permanent basis. If it is to be so equated, that would offend the constitutional norms enshrined in Articles 14 and 16 of the Constitution. The decision in Uma Devi (supra) and Official Liquidator (supra) cautions the Courts not to violate such constitutional norms.
It must be borne in mind that the petitioners were not lured into accepting employment as Part-time Workshop Instructors by promising them absorption in future against the sanctioned posts or that 6 they were coerced by some authority to accept such employment. Therefore, they cannot be heard to complain of violation of Articles 14 and 16 of the Constitution on the ground that even after having worked for more than half a decade, they have not been regularized. In the opinion of this Court, after having applied for and accepted employment/engagement on part-time basis superimposed by a stipulation (provided in the Circular dated 29th April, 2004) that the appointments would be purely temporary, they are estopped from seeking a direction for their absorption.
Reliance on paragraph 53 of the decision in Uma Devi (supra) by Mr. Chatterjee appears to be misplaced. The first criterion of having served for more than 10 years is not fulfilled by the petitioners. Even otherwise, the Apex Court observed therein that "the question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment". Considered in the light of the said judgment, the petitioners do not appear to have any right since they did not face competition from equally or more qualified 7 candidates since the process of selection was not undertaken to make permanent appointments.
One could appreciate the petitioners' claims if they had been engaged on part-time basis even though recruitment process had been initiated for appointment on permanent basis. In such a case, the Court may have exercised discretion in their favour. But to make appointments by making departure from the advertisement issued i.e. regular appointment though initial appointment was made on part-time basis in terms of the advertisement, would amount to fraud on public which has been deprecated by the Apex Court in a number of decisions. A profitable reference may be made to the decision in Distt. Collector & Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi, reported in (1990) 3 SCC 655, wherein appointment given to a candidate not having qualifications mentioned in the advertisement inviting applications was observed to be a fraudulent practice.
This Court finds no reason to interfere. The writ petitions stand dismissed, without order for costs.
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However, keeping in mind the fact that some of the petitioners may have become age- barred by now in respect of regular appointment, it is directed that if the petitioners offer their candidature in response to invitation of applications by the State respondents for filling up the posts of Workshop Instructors on permanent basis, age bar shall be relaxed for those age-barred petitioners.
Copy of this order, duly countersigned by the Assistant Court Officer, shall be retained with the records of W.P. No.s 12271- 74(W) of 2009.
Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor.
(DIPANKAR DATTA, J.)