P.Sundara Rao v. The Lieutenant Governor And ORS.

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE SUVRA GHOSH WPA/9/2018 P.Sundara Rao ... Petitioner

Versus

The Ld. Governor and others ... Respondents For the petitioner : Mr. Gopala Binnu Kumar For the respondents : Mr. Shatadru Chakraborty Mr. D. Dwivedi Heard on : 13th & 16th October, 2023 Judgment on : 18th October, 2023 SUVRA GHOSH, J.

1.

The petitioner was initially appointed as a Data Entry Operator on adhoc basis under the Municipal Council by an order dated 4th August, 2000. The petitioner's service was regularised by the authority by an order passed on 26th July, 2004. He was entrusted with the duties of Divisional Accountant in addition of his own duties without any extra remuneration on adhoc promotion and his appointment was extended from time to time. By an order passed on December 29, 2017, the Secretary, Municipal Council recorded that since approval of the Administrator was not obtained for the adhoc promotion of the petitioner, the adhoc promotion was considered to be irregular by the Administrator and the Municipal Council decided not to extend the adhoc promotion beyond 31st December, 2017. The petitioner was

reverted to his substantive post with effect from 1st January, 2018. The said order is assailed in the writ petition. 2.

Learned counsel for the petitioner has submitted that in terms of a special meeting of the council held on 12th May, 2011, Draft Recruitment Rules for the post of Accountant, Commercial Accountant and Divisional Accountant were published in the daily English News Paper 'The Daily Telegrams' wherein the method of recruitment was by transfer failing which by direct recruitment. Upon publication of the Draft Recruitment Rules for the post of Account, the council held that since the scale of pay and Grade Pay for the post of Accountant, Commercial Accountant and Divisional Accountant were identical the three posts may be merged by redesignating it as Divisional Accountant. The Recruitment Rules were proposed to be amended so as to enable the incumbents working as Higher Grade Clerks and Computer Assistants to have promotional avenues.

Since there was shortage of technical and administrative staff and large number of vacancies, promotion posts were proposed to be filled up on adhoc basis during pendency of circulation of the draft amendment. The petitioner was promoted to the post of Accountant purely on adhoc basis for a period of six months vide order dated 10th October, 2011, which was extended from time to time.

3.

Learned counsel has placed reliance on the Andaman and Nicobar Islands (Municipal) Regulation, 1994 and has submitted that Regulation 61 (2) envisages that a copy of every resolution passed at

any meeting of the municipality shall, within ten days from the date of the meeting, be forwarded to the Deputy Commissioner. The said regulation has not been complied with by the respondents. Learned counsel has placed reliance upon Regulation 198 and 205 and has submitted that in terms of the said regulations, the order impugned is not sustainable and is required to be set aside. Learned counsel has also relied upon an order of a Coordinate Bench of this Court passed on March 19, 2021 in WP/106/2019 in support of his contention. 4.

Learned counsel for the respondents has supported the order impugned and has submitted that the petitioner was aware of the proposed recruitment rules while being granted adhoc promotion. As per Rule 5 (1) of the Andaman and Nicobar Islands Municipal Services (Classification, Control and Appeal) Rules, 2008, all appointments to Group B posts in the municipal services shall be made by Municipal Council, in accordance with the notified recruitment rule and each such appointment shall be subject to the approval of the Administrator. The adhoc promotion of the petitioner was not approved by the Administrator. Learned counsel has referred to Regulations 197 and 198 of the Regulations of 1994 which demonstrate that the proceedings of Municipality shall be in conformity with the law for the time being in force and the Administrator and the Deputy Commissioner may, by order in writing, annul or modify any proceeding of a municipality which they may consider not to be in conformity with law. Regulation 198 authorizes

the Administrator to suspend or cancel any resolution if the same is not passed legally. Learned counsel has also placed reliance on the authorities in Secretary, State of Karnnataka and others vs. Umadevi (3) and others reported in (2006) 4 SCC 1 and Loop Telecom and Trading Limited vs. Union of India and another reported in (2022) 6 SCC 762.

5.

It is not in dispute that the petitioner was granted adhoc promotion to the post of Accountant initially for a period of six months which was extended from time to time. Extension was refused by the Municipal Council by an order passed on December 29, 2017 solely on the ground that the adhoc promotion was considered to be irregular by the Administrator since approval of the Administrator was not obtained for the same. Such opinion/decision of the Administrator is absent within the four corners of the record. It is only reflected in the order impugned and not supported by the decision itself. The orders issued in favour of the petitioner demonstrate that they were passed upon approval of the 'competent authority'. Since the orders were required to be made subject to approval of the Administrator, there is no reason why the term 'competent authority' in the orders shall not be interpreted as "the Administrator".

6.

It shall be useful to set out the Regulation 205 of the Regulations of 1994:- "205. No act done or proceeding taken under this Regulation shall be questioned on the ground merely of the

existence of any vacancy in any Municipality, sub-committee or joint committee or on account of any defect or irregularity not affecting the merits of the case."

7.

In terms of the said regulation, even if an act done or proceeding taken under this regulation is irregular, it cannot be questioned if it does not affect the merits of the case. In my considered view, since the alleged irregularity in the order granting adhoc promotion to the petitioner does not affect the merits of the case, it cannot be questioned or withdrawn by the authority. The petitioner has been working in the said post on the basis of adhoc promotion granted to him which was extended from time to time. It was not the responsibility of the petitioner to know or ascertain whether such order required approval of the Administrator and if so, whether such approval was taken. The authority could not have deprived the petitioner of further extension due to no fault on the part of the petitioner. In fact, it was the authority which was at fault in not getting the promotional order approved by the Administrator, if required under the rules. Under no circumstances can the petitioner be made to suffer on account of laches on the part of the authority. 8.

Regulations 197 and 198 deal with resolutions/orders etc. which are not legally passed. The authority in Loop Telecom and Trading Limited (supra) deals with a fact situation when both the authorities are aware of the illegality at the very inception. There being no allegation of illegality in the present case, the said regulations have no manner of application herein. The ratio laid down in the authority

in Loop Telecom and Trading Limited (supra) can also be distinguished from the case in hand. The authority in Umadevi (supra) talks about legitimate expectation of persons who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. The judgment records that such a person cannot invoke the theory of legitimate expectation for being confirmed in the post. In the case in hand, the petitioner is all throughout aware that he has been posted on adhoc basis which was extended from time to time and he has no claim or right whatsoever for regular appointment in the post. That being the case, the ratio laid down in the judgment is not relevant in the fact situation of the present case.

9.

In view of the discussion made hereinabove, the order impugned dated December 29, 2017 is not sustainable in the eye of law and should be set aside.

10.

Accordingly, the writ petition being WPA/9/2018 is allowed. 11.

The order dated December 29, 2017 passed by the Secretary, Municipal Council is set aside/quashed.

12.

The Secretary, Municipal Council, being the fourth respondent herein, is directed to take necessary steps for extension of the adhoc promotion of the petitioner in tune with the earlier extensions granted to him.

13.

The entire exercise should be completed within two months from the date of communication of this order upon affording reasonable opportunity of hearing to all concerned, including the petitioner, in accordance with law.

14.

The writ petition is accordingly disposed of. There shall, however, be no order as to costs.

15.

Urgent photostat certified copy of this order, if applied for, may be supplied to the parties upon compliance of usual formalities. ( Suvra Ghosh, J.)