Calcutta High Court (Appellete Side)
Ranjit Sarkar & Ors vs University Of Kalyani & Ors on 17 May, 2017
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar
W.P. 12392(W) of 2016
Ranjit Sarkar & Ors.
-vs.-
University of Kalyani & Ors.
For the Petitioners : Mr. Biswaroop Bhattacharya
Mr. Reshmi Ghosh
Ms. Surasri Baidya
For the State : Mr. Jahar Lal De
Ms. Smita Das De
For the University : Mr. Amitava Chaudhuri
Ms. M. Chaudhuri
Mr. N. Nag
Heard on : 03/01/2017, 17/01/2017,
24/01/2017 & 10/02/2017
Judgement on : 17/05/2017
Subrata Talukdar, J.:
The short point in this application relates to whether the petitioners are entitled to the same consideration by the respondents/University of Kalyani acting under instructions of the respondents/Department of Higher Education, Government of West Bengal (for short the State-respondents) as has been granted to the petitioners in WP No. 9320(W) of 2001 (for short WP-I).
It is relevant to place on record the terms of the order dated 14th March, 2013 of a Hon'ble Single Bench, inter alia, directing as follows:-
"Heard the learned Counsel appearing for the parties. It appears that the writ petitioners are working as canteen workers for last twenty years, which is undisputed. It is also undisputed that similarly situated co-workers are regularized but these petitioners were not given regularization for the reasons best known to the respondent authorities. In that vies of the matter, the Secretary, Higher Education Department, Government of West Bengal, is directed to consider the case of the writ petitioners with sympathy and also taking note of the fact that the writ petitioners are working as canteen workers for the last twenty years. However, it appears that in similar such cases regularization was allowed which was affirmed by this Court as well as the Hon'ble Apex Corut. Therefore, the Concerned Secretary, Higher Education Department, Government of West Bengal is to take a decision favourable to the writ petitioners, in the special facts and the circumstances of this case. The concerned Secretary is directed to decide the matter within a period of eight weeks from the date of communication of the order. The concerned Secretary is also directed to give an opportunity of hearing to the writ petitioners or their representatives and also allow them to produce relevant records, rules and/or judgments in their favour if any and the University Authority should also be given an opportunity of hearing at the time of taking a decision.
The writ petition is disposed of."
Acting in compliance of the order dated 14th March, 2013 (supra) the Secretary, Higher Education Department, Government of West Bengal, inter alia, arrived at the following findings:-
"it is submitted by the Registrar of the University that as on 29.09.1995, i.e. at the time of issuance of order of engagement of the petitioners there were 59 regular employees and 12 contingent employees in the University. It is further stated that 43 Hostel/Mess employees instituted Writ petitions before the Hon'ble Calcutta High Court and Hon'ble Supreme Court of India and they were granted the status of University's employees' w.e.f. 12.07.1991. Later 27 more mess workers moved similar applications before the Hon'ble High Court as per which the Registrar of the university passed a Reasoned Order as per direction of the Hon'ble High Court and accept and extended the same benefit to 43 mess workers. Thus, taken together, severy (43+27) mess employees have been granted to status of employees of the University. There were four other employees who did not file any court case but were conferred the same benefit in this way.
In determining the strength of regular employees in the hostel of the University the provisions of Section 3 of the West Bengal Unviersity (control of expenditure) Act, 1976 and the provisions of the Government Order vide No. 1583-Edn (U) dated 19.10.1981 would apply. In a judgment in Civil Appeal No. 3593-3612 of 1999 dated 10.04.2006, the Hon'ble Apex Court has taken care of 'irregular (not illegal) appointments' in para 44 of their Judgment and directed the authorities concerned to consider regularization of those casual/temporary employees who were appointed against a permanent sanctioned vacancy and continue to work therein for a period of at least 10 years without the intervention of orders of courts or tribunal. Thus, in light of this judgment there is scope for considering regularization of the petitioners provided the University authority has an equal number of approved/sanctioned vacant posts.
The Registrar, Kalyani University has informed that as per G.O. No. 1583-Edn (U) dated 19.10.1981; the sanctioned strength of mess workers is fifty nine, of which 16 posts are presently vacant. Since, the Hon'ble High Court has directed the undersigned to take a decision favorable to the petitioners and considering the peculiar circumstances of the case, and in light of the Hon'ble Supreme Court's above mentioned judgment, it is hereby held that the employment of the petitioners be regularized against the vacant posts sanctioned in terms of Government order no. 1583-Edn (U) dated 19.10.1981, with effect from the date of issue of this order. The case is accordingly disposed of in compliance with the Hon'ble High Court's order dated 14.03.2012 passed by Hon'ble Justice Ashoke Kumar Dasadhikary. All concerned are ebing informed accordingly."
Following the order dated 10th July, 2013 (supra), the University of Kalyani regularised the services of the writ petitioners in WP-I by order dated 8th October, 2013.
The present petitioners claim to be similarly circumstanced as the petitioners in WP-I. Therefore, by filing WP No. 1577(W) of 2016 (for short WP-II), the present petitioners sought a direction from an Hon'ble Single Bench of this Court for consideration of their representation lodged with the respondent No.2/the Vice-Chancellor (VC) of the respondents/University.
The respondent No.2 was accordingly directed by the order dated 14th March, 2016 to consider the representation of the writ petitioners at page 72 of WP-II in accordance with law within the period specified by the Hon'ble Single Bench upon hearing the parties requiring to be heard. The respondent No.2/VC was directed to pass a reasoned order to be communicated to the writ petitioners.
Mr. Biswaroop Bhattacharya, Ld. Counsel appearing for the petitioner in the present writ petition (for short WP-III), submits that the reasoned order of the respondent No.2/VC dated 17th of May, 2016 in purported compliance of the order of the Hon'ble Single Bench dated 14th March, 2016 is the subject matter of challenge in this writ petition.
Mr. Bhattacharya further submits that the impugned reasoned order dated 17th May, 2016 copiously relies upon a Government Order (GO) dated 28th October, 2014 of the Principal Secretary, Higher Education Department. The reasoned order, at its operative portion, reads as follows:-
"The Finance Officer cited the Government Memo vide No. 874-Edn(CS)/1C-63L/12 dated 28th October, 2014 issued by the Principal Secretary, Higher Education Department, Government of West Bengal where in para 8, it is clearly mentioned that "All existing posts of Hostel/Mess employees in all State-aided Universities, Government-aided Colleges and Government Colleges shall be considered to be a "dying cadre" and all such post shall be treated as personal to the present incumbent. No further recruitment, either contractual or permanent, including appointment on compassionate ground shall be allowed in such post with effect from the date of issue of this Order. The Hostel and Messes of all such Universities and Colleges shall be maintained by outsourcing through private entrepreneurs for which the state Government may grant annual ad-hoc grants. The detailed procedure in this regard will be laid down in due course". The Finance Officer also pointed out that after issuance of the State Government's order dated 28th October, 2014, the existing vacancy in the permanent position of the mess employees is zero.
The Registrar of the University mentioned that the two petitioners and one authorized representative pointed out during the time of hearing the Governmental orders and/or reasoned order of the State Government in the similar cases but those were issued prior to the State Government's order dated 28th October, 2014. In his statement, the Registrar of the University also told that the petitioners will have to approach before the State Government in stead of University of Kalyani.
In view of the above and after issuance of the State Government Memo dated 28th October, 2014, the undersigned believed that the University is not in a position to regularize the service of temporary Hostel/Mess Employees against any sanctioned vacant post(s)."
Mr. Bhattacharya points out that the reasoning shown by the respondent No.2/VC is contrary to the settled provisions of law. Mr. Bhattacharya argues that the petitioners cannot be thrown out of consideration only on the ground that they constitute a "dying cadre". Ld. Counsel for the petitioners submits that the respondents/University ought to have considered the detailed representation of the writ petitioners dated 4th December, 2015, at the least, on the point that the petitioners are entitled to Equal Pay for Equal Work performed by them against identical posts of hostels/mess employees.
On behalf of the respondents/University, Mr. Amitava Chaudhuri, Ld. Counsel, appears and submits that the law on regularisation has been settled by the decision of the Hon'ble Apex Court reported in 2006 (4) SCC 1 in the matter of Secretary, State of Karnataka & Ors. vs. Uma Devi & Ors. Mr. Chaudhuri argues that the claim for regularisation cannot be extended to the writ petitioners except within the window created by Paragraph 53 of In Re: Uma Devi. Furthermore the petitioners are not entitled to a similarity of treatment in view of the GO dated 28th October, 2014.
Mr. Chaudhuri also relies upon the unreported decision of a Hon'ble Division Bench of this Court in FMA 370 of 2014 which, inter alia, refused regularisation in respect of contractual posts.
On the behalf of the State-respondents, Mr. Jahar Lal De, Ld. Senior Government Advocate appears and, reiterates the stand taken by Ld. Counsel for the respondents/University.
Having heard the parties and considering the materials placed, this Court is persuaded to consider the validity of the impugned order dated 17th May, 2016 on the issue of whether the principle of "dying cadre" has been correctly applied to the facts and circumstances of this case. In the considered view of this Court the principle of "dying cadre" is not synonymous with "dead cadre".
The principle of "dying cadre", while holding good in respect of persons already regularised by extending the benefits of regularisation to posts personal in nature, cannot mean that there can be no consideration of the regular/substantive posts still available in the cadre at the time when the declaration of a "dying cadre" was made vide the communication dated 28th October, 2014.
To the further mind of this Court the impact of the GO dated 28th October, 2014 can be appreciated only on the terms that there can be no future creation of substantive vacancies. However, the embargo on the future creation of substantive vacancies does not mean that, as on the date of declaration of the cadre as 'dying', the remaning available non-filled up substantive vacancies can be treated to be already 'dead'.
Accordingly, this Court is of the view that the petitioners cannot be denied the opportunity of submitting themselves for consideration to be treated on the same footing as the petitioners in WP-I keeping in mind the remaining substantive vacancies available as on the date of declaration of the cadre as 'dying'.
Sustenance for the above noted view of this Court is drawn from the observations of the Hon'ble Apex Court In Re: M.P. Junior Engineers' Association and Sangarsh Samiti & Ors. vs. State of Madhya Pradesh & Anr. reported in MANU/SC/0551/1990 at Paragraph 16, which reads as follows:-
"16. We have considered the submissions of the parties in the light of the above rules and amendments and come to the conclusion that there is force in the contention of the appellants that they are eligible for promotion as AEs. in the same manner as the erstwhile JEs. of the Irrigation Department. The assumption of the respondents that the cadre of JEs. had ceased to exist long before the absorption of the present appellants into the Department is incorrect. As pointed out earlier, though the decision to abolish the cadre was taken in 1979 and the existing posts were converted into those of AEs./SEs. on 27.5. 1980, the cadre did not die, for the JEs. of the Department who were then functioning continued to function as before until they were promoted in due course as AEs. It is also not correct to say that this crucial "fact" had been overlooked at the time of passing the merger order of 8.10.1982. On the contrary, the State was fully conscious of its earlier decision and the order of 8.10.1982 specifically mentions that the posts of STAs. will be merged in the posts of JEs. "and an equivalent number of posts may be deemed to have been created in the dying cadre of Junior Engineers". These words make it perfectly, clear that the cadre of JEs. was "dying" (but not dead) and the strength of the dying cadre was further enlivened by taking in the STAs. of the Corporation as JEs. Thus, the position is that, as on 8.10.82, the cadre of JEs. continued to subsist and comprised of the old JEs. of the Irrigation department and the STAs. engrafted from the Corporation. This conclusion is reinforced by the interesting circumstance that the reference in Schedule I of the Non-Gazetted Service Rules to JEs. was not omitted despite the decisions of 1979 and 1980. It is true that the number of these posts was mentioned as 269 in the Civil Branch and 13 in the Electrical & Mechanical Branch. But the actual number had far exceeded these without a corresponding amendment in the Schedule. This, however. is inconsequential. Rule 6 of these Rules is in the following terms:
Rule 5. Method of recruitment--(i) Recruitment to the service, after the commencement of these rules, shall be by the following methods, viz.--
(a) by direct recruitment, by Selection/by Competitive Examination as shown in Schedule II,
(b) by promotion of substantive/officiating members of the service (as shown in the Schedule IV), and
(c) by promotion of persons who hold in a substantive capacity such posts in such services as may be specified in this behalf.
(ii) The number of persons recruited under clauses (b) and (c) of sub-rule (1) of the rule 6 shall not at any time exceed the percentage shown in the Schedule II.
(iii) Subject to the provisions of these rules, the method/methods of recruitment to be adopted for the purpose of filling any particular vacancy/vacancies in the Service as may be required to be filled during any particular period of recruitment, and the number of persons to be recruited by each method, shall be determined on each occasion by the appointing Authority.
(iv) Notwithstanding anything contained in sub- rule (i) if in the opinion of Engineer-in-Chief/Chief Engineer, the exigencies of the service so require, the said Engineering-
Chief/Chief Engineer, may after consulting the Govt., may adopt such methods of recruitment to the service other than those specified in the said sub-rule, as he may, by order issued in this behalf, prescribe.
Rule 6(iv) read with the Schedule I clearly empowered the Government, in the exigencies of the situation, to continue the cadre for limited purposes and augment the same by the number of STAs. absorbed from the Corporation. We have, therefore, no hesitation in holding that, on the terms of the relevant rules as well as on the language of the order of 8.10.1982, the appellants, viz. STAs. absorbed from the Corporation were constituted as a part of the cadre of J.Es., placed on complete par with the JEs. of the department already in service and given the same promotional eligibility and opportunities as the later."
Accordingly, the reasoned order dated 17 the May, 2016 stands set aside.
The petitioners shall be entitled to a fresh consideration in the additional light of the observations made above on the terms as already directed by the order dated March 14, 2016 in WP-II. It is expected that the above directed exercise shall be completed not later than a period of twelve (12) weeks from the date of communication of this order.
WP 12392(W) of 2016 stands accordingly allowed. Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)