Jharkhand High Court
Sanjeev Kumar Raha vs Coal India Ltd. & Ors on 11 April, 2011
Author: R.R.Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
C.W.J.C No.1976 of 2001
Sanjeev Kumar Raha .......................Petitioner
V E R S US
Coal India Limited and others........ Respondents
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner: Mrs. M.M.Pal, Sr. Advocate and
Miss Mahua Palit, Advocate
For the Respondents: Mr.Ananda Sen, Advocate
11. 11.4.11. This writ application has been filed for issuance of a writ directing the respondents to absorb the petitioner permanently on the post of Clerical Grade III after setting aside the order as contained in letter dated 26.4.2001 (Annexure 7) whereby Director (Personnel), C.C.L after taking into account the report submitted by the committee rejected the claim of the petitioner for absorption on the post of Clerical Grade III.
It is the case of the petitioner that he on being selected was appointed on 27.11.1990 as Stipend Athlete in C.C.L Sports Club for a period of one year on a stipend of Rs.700/- per month. In course of time, the petitioner participated in many important athletic events and was awarded not less than 10 gold medals. Keeping in view such performances, tenure was extended time to time. In the year 1994, one R.K.Pathak Stipend Athlete/Player as well as Rashmi Shanta Baxla engaged as Stipend Athlete/Player subsequent to the petitioner were appointed on the post of Clerical Grade III ignoring the claim of the petitioner whose performance was in no means inferior to them. Therefore, the petitioner made several representations raising his grievance. Ultimately the Director (Personnel), C.C.L, vide its letter dated 17.4.1997 made recommendation for absorption of the petitioner in Clerical Grade III with an assertion that the petitioner a Stipend Athlete/Player since 1990 has been a good performer throughout but his case was not considered for regularization, though two other persons were absorbed in the regular cadre. In spite of such 2 recommendation, when no decision was taken by the authority, the petitioner filed a writ application, bearing C.W.J.C. No.196 of 1999 (R) which was disposed of on 25.1.2001 with a direction to the respondents to consider the case of the petitioner for appointment/absorption in the service of Central Coalfield Limited against the appropriate post taking into consideration the engagement as stipend athlete, the qualification, eligibility and performance of the petitioner. Pursuant to that order, petitioner made representation before the Chairman-cum-Managing Director, C.C.L, Darbhanga House, Ranchi, respondent no.2. On such representation, a committee was constituted for considering the case of the petitioner. After consideration of the case, the committee came to the finding that R.K.Pathak and Rashmi Shanta Baxla were appointed/absorbed in the Company after taking into account their meritorious performances in the field of different events whereas the petitioner is only a runner, whose services in the Company is not required. The Director (Personnel), C.C.L on taking into account the report of the committee rejected the claim of the petitioner, vide its order as contained in letter dated 26.4.2001 (Annexure 7) which had been sought to be quashed and at the same time, prayer has been made to direct the authorities to absorb the petitioner on the post of Clerical Grade III.
Mrs. M.M.Pal, Sr. counsel appearing for the petitioner submitted that performances of the petitioner appointed as Stipend Athlete is in no manner inferior to other two persons, namely, R.K.Pathak and Rashmi Shanta Baxla, as the petitioner being athlete had won number of gold medals in the events of track and field organized in the State and also outside of the State, still the claim of the petitioner for absorption was rejected, though the respondents absorbed the services of R.K.Pathak and Rashmi Shanta Baxla who had also been appointed as Stipend Athlete/Player by taking plea that they had participated in the events of Javeline throw, Long Jump, High Jump etc. whereas the petitioner had participated only in running which plea 3 cannot be said to be justified as field of sports constitute several discipline, such as, long jump, high jump, javeline throw, track and event etc. and as such, one may, according to his ability, chose any of the disciplines such as, long jump, high jump, javeline throw etc. and other may chose the track and field and in that situation, the athlete performing well cannot be said to be inferior to the persons, who have chosen other field of sports such as, long jump, high jump, javeline throw etc. and therefore, the ground which has been taken by the authority for rejecting the claim of the petitioner is certainly discriminatory and is also tainted with vice of arbitrariness. Therefore, the petitioner deserves to be regularized on Clerical Grade III post.
Learned counsel by referring to a decision rendered in a case of State of Karnataka and others vs. M.L.Kesari and others reported in [(2011) 1 All India Services Law Journal 83] (Civil Appeal No.6208 of 2010) submitted that their Lordships after taking into consideration the ratio laid down in Uma Devi's case [(2006) 4 SCC 1] have been pleased to hold that all persons who have put in ten years or more than ten years as on 10.4.2006, without the protection of any interim order of any Court or Tribunal on vacant post, possessing the requisite qualifications are entitled to be considered for regularization. Thus, it was submitted that the petitioner in the light of the aforesaid decision is entitled to be absorbed in the regular cadre of the Company.
As against this, Mr. Ananda Sen, learned counsel appearing for the C.C.L submitted that it is true that the petitioner was appointed as Stipend Athlete but he was never appointed on such post by the C.C.L, rather he and also other persons have been appointed by the sports club of C.C.L a distinct entity and therefore no duty is cast upon the respondents to appoint/absorb in the regular cadre of Clerical Grade III of the Company. Moreover, the petitioner's performance has not been found to be good enough as that of R.K.Pathak and Rashmi Shanta 4 Baxla and as such, claim of the petitioner for absorption/regularization in regular cadre has rightly been refused.
Learned counsel further submitted that once the claim has been rejected, this Court would be loath in granting any relief to the petitioner, if the petitioner does not have any legal right to be appointed and there is no corresponding legal obligation on the C.C.L to regularize/absorb the services of the petitioner and in that event, no relief can be granted, even if some other persons similarly situated have been appointed.
Learned counsel in support of his case has referred to decisions rendered in a case of State of Orissa and others vs. Prasana Kumar Sahoo [(2007) 15 SCC 129] and in a case of Post Master General, Kolkata vs. Tutu Das (Dutta) [(2007) 5 SCC 317].
Learned counsel further submitted that admittedly the petitioner was never appointed by the Company, rather he was appointed as stipend athlete by the sports club not on the post of regular cadre through open competitive process and as such, he is not entitled to be regularized on the post of regular cadre in view of the decisions rendered in a case of State of Rajasthan and others vs. Daya lal and others [(2011) 2 SCC 429], Government of Andhra Pradesh and others vs. K.Brahmanandam and others [(2008) 5 SCC 241] and also in a case of State of Karnataka vs. Uma Devi [2006) 4 SCC 1 ].
Having heard learned counsel appearing for the parties, it does appear that the petitioner on being selected was appointed in the year 1991 as Stipend Athlete by C.C.L sports club but it has never been pleaded that the petitioner had been appointed against the sanctioned vacant post of the Company, i.e. C.C.L. On the contrary it is the stand of the respondent that the petitioner has been appointed by the authority of C.C.L Sports Club a distinct entity. Nothing was placed before me to show that the petitioner was appointed through open competitive process under any rule. In that situation, it would not be 5 desirable for this Court to issue direction for regularization/absorption or permanent continuance in exercise of power under Article 226 of the Constitution of India as that would be violative of the constitutional scheme as enshrined under Articles 14 and 16 of the Constitution of India. Such proposition has been laid down in celebrated Judgment of the Hon'ble Supreme Court rendered in a case of State of Karnataka vs. Uma Devi (supra) wherein in paragraph 44 it has been observed as follows:
"44. The concept of 'equal pay for equal work' is different from the concept of conferring permanency on whose who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein after Dharwad decision the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality."
However, the Hon'ble Supreme Court made one exception to the above proposition which has been highlighted in paragraph 53 of the said judgment is as follows:
6
" One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanappa, 1967 (1) SCR 128, R.N.Nanjundappa, 1972(1) SCC 409 and B.N.Nagarajan, 1979(4) SCC 507, and referred to in para 15 above, of duty qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the Courts or of Tribunals. The question of regularization 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 above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of 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 filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set n motion within six months from this date.."
The principles which have emerged out in the case of State of Karnataka vs. Uma Devi (supra ) are as follows:
(i) The employee concerned should have worked for 10 years as on 10.4.2006 ( the date of decision in Uma Devi) or more in duly sanctioned post without the benefit 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 appointments are considered to be irregular.
Subsequently, the principles laid down in Ume Devi's case were reiterated in the case of State of Orissa and others vs. Prasana Kumar Sahoo (supra), Government of Andhra Pradesh and others vs. K.Brahmanandam and others (supra) and CSIR vs. Ramesh Chandra Agrawal [(2009) 3 SCC 35].
In the instant case as I have stated earlier that it is nowhere of the case of the petitioner that he has been working in the sanctioned 7 post of the C.C.L, rather the petitioner admittedly was appointed as Stipend Athlete by C.C.L sports club which, according to counsel appearing for the C.C.L is not a regular cadre post of C.C.L. In that event, he does not have any legal right to be absorbed/regularized. In that event, even if some persons similarly situated have been appointed, the extraordinary jurisdiction as enshrined under Article 226 of the Constitution cannot be invoked for perpetuating an illegality. In this connection again case of State of Orissa and others vs. Prasana Kumar Sahoo (supra) may be referred to wherein their Lordships in para 20 has observed as follows:
" It may be that some other persons similarly situated have been appointed. But Article 14 as is well known contains a positive concept. A writ of mandamus can be issued by the High Court only when there exists legal right in the writ petitioner and corresponding legal obligation in the State. Only because an illegality has been committed, the same can not be directed to be perpetuated by a court of law.
Thus, since the petitioner does not have any legal right to be absorbed/regularized, he is not entitled to relief claimed in the writ application and hence, the writ application stands dismissed.
(R.R.Prasad, J.) ND/