Port Blair Municipal Council And ORS. v. A.Subramaniam

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE HARISH TANDON And THE HON'BLE JUSTICE SHIVAKANT PRASAD MA/31/2020 Port Blair Municipal Council and others.

...

Appellants Vs.

A.Subramaniam ...

Respondent For the appellants : Mr.Arul Prasanth, Advocate For the respondent : Mr.G.Binnu Kumar, Advocate Heard on : September 13, 2021 Judgment on : September 16, 2021 HARISH TANDON, J.

The present mandamus appeal has been preferred against the judgment and order dated December 13, 2019 passed by the Single Bench in WP No.293 of 2018 directing the Port Blair Municipal Council to regularize the services of the petitioner/respondent under the same or similar cadre in which he is working as daily rated mazdoor as a regular worker on a permanent basis on or before 10th January, 2020.

The matter has a chequered history as the respondent herein approached the Court on several occasions ventilating the grievance against the appellant authorities in not considering his

representations/applications for regularization of the service even after having served in such capacity for more than ten years uninterruptedly without under the shelter of any court order. The facts which emerged from the instant appeal are that the petitioner/respondent was appointed as chowkidar on the basis of the resolution by Pradhan of Gram Panchayat, Garacharma-II on a consolidated pay of Rs.1200/- with effect from 1st November, 1995. The service of the petitioner/respondent was terminated by the Directorate of Panchayat and Pradhan of the said Gram Panchayat which led the filing of an application by the petitioner/respondent for initiation of conciliation proceeding before the Conciliation Officer under Industrial Disputes Act.

The conciliation proceeding ended in failure and the appropriate Government referred the dispute to the Labour Court for adjudication which gave rise to the registration of ID Case No.19 of 2004. By an order dated 30th July, 2008 the Labour Court passed an award that the termination was illegal and the petitioner/respondent is entitled to reinstatement in service as Chowkidhar in the said Gram Panchayat on an usual scale of pay subject to further benefit of emoluments as may be fixed from time to time by the Administration with immediate effect. The award further revealed that the period of disengagement of the petitioner/respondent shall be taken notionally as a period of employment for continuity in service but without any monetary benefits.

The order of the Labour Court was implemented as the petitioner/respondent was permitted to continue rendering the services in such status.

Subsequently, the said Gram Panchayat was brought under the municipal limit with effect from April, 2015 and was designated as ward No.18 of the Port Blair Municipal Council. Before the

aforesaid decision of merger of the said Gram Panchayat into the Municipal Council area, the petitioner/respondent approached this Court by filing a writ petition No.25 of 2012 seeking regularization of his services to such post and the said writ petition was disposed of directing the Director of Panchayat that in the event any scheme is framed for regularization of the services of such daily rated mazdoors, the candidature of the petitioner/respondent shall also be considered.

Indubitably, the Panchayati Raj Institutions did not frame any scheme as one time measure to regularize the services of the daily rated mazdoors which constrained the petitioner/respondent to take out another writ petition No.183 of 2013 which again came to be disposed of with the identical direction to frame scheme to consider the candidature of the petitioner/respondent. This time the Administration challenged the order of the Single Bench disposing of the aforesaid writ petition by filing a mandamus appeal being MAT No.018 of 2013 and the order of the Single Bench was modified to the extent that the Panchayati Raj Institutions shall be free to frame scheme within a period of six months from the date of the order. On the basis of such order the Director of Panchayat rejected the prayer of the petitioner/respondent for regularization of service which was challenged in another writ petition being WP No.29 of 2015 before this Court.

As indicated above, the six panchayats were included within the territorial limit of the Port Blair Municipal Council and a decision was taken at the administrative level that the daily rated mazdoors, who were in employment in the aforesaid six panchayats and which merged with the Municipal Council, shall be allowed to work continuously under the Port Blair Municipal Council and

accordingly, the petitioner/respondent is working in such status under the Port Blair Municipal Council and his name was also included in the muster roll maintained by the administrative branch of the said Municipal Council.

However, the petitioner/respondent continued to agitate his grievance for regularisation as he has rendered more than 10 years of uninterrupted service. It is not in dispute that in terms of the judgment of the Supreme Court rendered in case of Secretary, State of Karnataka Vs. Uma Devi, reported in 2006 (4) SCC 1, a one-time measure was taken out by the Port Blair Municipal Council regularizing the services of 176 daily rated mazdoors by giving relaxation to age and the educational qualifications. The petitioner/respondent in the instant writ petition has ventilated the grievance that he being the employee of the Port Blair Municipal Council is entitled to the benefit of the said one-time scheme.

The appellants contend that the aforesaid one-time scheme is intended as a one-time measure and cannot be held to be in perpetuity and therefore, the claim of the petitioner/respondent is untenable. It is further contended that there are 1190 casual mazdoors working in the Port Blair Municipal Council and if the claim of the petitioner/respondent is accepted it would cause financial burden on the exchequer.

By the impugned order the Single Bench held that the petitioner/respondent cannot be put into disadvantageous position when 176 daily rated mazdoors working under the Port Blair Municipal Council had been benefitted by such scheme as would offend Article 14 of the Constitution of India. The Single Bench, however, directed the regularization of the service of the petitioner/respondent in the same cadre and extend all the service

benefits accrued to the petitioner/respondent from the date of such regularization.

Mr.Prasanth, learned advocate appearing for the appellant submits that the petitioner/respondent is not entitled to offer his candidature for regularization once the scheme has been exhausted with the 176 daily rated mazdoors working under the said Municipal Council. It is further submitted that the petitioner/respondent is an habitual litigant and approached the Court on each occasion but the writ petitions were disposed of without passing any order for regularization. It is further submitted that there are sizeable numbers of daily rated mazdoors working under the Municipal Council and one solitary incident may invite the spate of application for regularization which would cause huge financial burden on the exchequer.

On the other hand, the learned advocate for the petitioner/respondent submits that the petitioner/respondent was otherwise eligible to be considered for regularization of his services but there is no scheme framed by the Panchayat Raj Institution. It is further submitted that after the amalgamation of the said Panchayat with the Municipal Council, the petitioner/respondent, who is placed on a similar footing that of the said 176 daily rated mazdoors whose services have been regularised, cannot be treated discriminately. He further submits that the judgment of the Uma Devi (supra) was further considered in State of Karnataka and others vs. M.L. Kesari and others reported in (2010) 9 SCC 247 wherein the Supreme Court has held that the authorities cannot discriminate the employees while promulgating a onetime exercise and sparing the others who are otherwise entitled under the said scheme. It is

further submitted that in a recent judgment rendered in a case of Union of India and others vs. Sant Lal and others decided on January 8 2019, the Supreme Court has held that onetime measure should not be considered in its strict sense but is a continuous one till the eligible candidate is benefited by such scheme. It is thus submitted that there is no fetter on the part of the Municipal Council to consider the candidature of petitioner/respondent who is otherwise eligible under the said onetime scheme.

On the conspectus of the above submissions, it is undisputed that the petitioner/respondent was engaged on 1st November, 1995 and worked in the said Panchayat continuously. Though the service was terminated but the order of termination was set aside by the Labour Court with the categorical observation that the period of termination shall be counted as the period of employment for the purpose of continuity of the service and therefore there is no difficulty in construing such order that the petitioner/respondent continued in service uninterruptedly and without any interim order of the court.

Subsequently, the said Panchayat was included within the Municipal Council area as a decision was taken by the Administration to extend the territorial limits of the said Municipal Council and it would appear from the record that the petitioner/respondent was taken in the muster roll of the Municipal Council and still rendering his services in such status. Several writ petitions taken out by the writ petitioner/respondent were disposed of with the categorical finding that if any scheme is framed in terms of the mandate given in Uma Devi (supra), the candidature of the petitioner/respondent should be considered for the purpose of

regularization. Even in one of the such proceeding, the Division Bench of this Court directed to the Panchayati Raj Insititution to frame a scheme in terms of the mandate of Uma Devi (supra) yet there is no attempt shown on the part of the Administration to comply the said direction.

In Uma Devi (supra) the point which fell for consideration was whether the High Courts in exercise of the powers under Article 226 of the Constitution of India can issue a direction for absorption, regularization or the permanent continuance of the service when the appointments are made without following the due process of the rules or the law applicable in this regard. The Apex Court held that the High Court should be cautious in passing such directions when appointments are made without following the due process of the law or the rules applicable in this regard and the temporary, casual, contractual or daily wages employee does not have the legal right to be made permanent unless such appointment is in terms of the relevant rules. In paragraph 53 the Apex Court held:- " 53. 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 duly 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 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.

now employed. The process must be set in motion within six months from this date. ..."

From the aforesaid observation it appears that an exception is carved out that where the appointment is irregular against the duly sanctioned vacant post and the employee has worked for more than ten years without the intervention of the order of the Court, the question of regularization has to be considered on merit. The Apex Court further directed the Union of India and all the State Governments and its instrumentality to take steps for regularization of the services of such irregular appointees as onetime measure who have continuously worked for more than ten years in duly sanctioned posts and such process must be ensured within six months from the date of the order.

The expression 'onetime measure' was construed as a measure for a limited period and therefore any claim beyond it was not entertained. In M.L.Kesari (supra) the Apex Court interpreted the intension reflected in paragraph 53 of Uma Devi (supra) and held that lapses on the part of the authorities in not framing the scheme as onetime measure cannot disentitle such employees to be considered for regularization in these words:- "8. The object behind the said direction in para 53 of Umadevi is two-fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service.

Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad-hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment.

on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure."

In a recent judgment rendered in case of Sant Lal and others, the Apex Court held that the judgment of the Uma Devi (supra) should not be construed to preclude the claim of the employees seeking regularization after that exercises have been undertaken with respect to some employees. It is further held that deprivation of some of the employees would result in complete foreclosure of right whereas the said onetime measure is a continuous exercise in these words:- "The judgment of this Court in Uma Devi does not preclude the claims of employees who seek regularization after the exercise has been undertaken with respect to some employees, provided that the said employees have completed the years of service as mandated by Uma Devi.

The ruling casts an obligation on the State and its instrumentalities to grant a fair opportunity of regularization to all such employees which are entitled according to the mandate under Uma Devi and ensure that the benefit is not conferred on a limited few. The subsequent regularization of employees who have completed the requisite period of service is to be considered as a continuation of the one-time exercise."

The law propounded in the above noted decisions leaves no ambiguity that onetime measure should not be construed so narrowly or strictly to deny the rightful claim of the daily rated mazdoors. If some of the employees have been considered leaving the others, the said onetime measure must be construed as a

continuous process and the candidature of those employees can be considered.

There is a peculiar fact involved in the instant case. Admittedly, the petitioner/respondent was employed as daily rated mazdoor in the said Panchayat. The Panchayat Raj Institution never floated any scheme as onetime measure in terms of the mandate of the Uma Devi (supra) despite the directions passed by this Court in the mandamus appeal. The fate of the petitioner/respondent was kept in lurch in absence of the onetime measure to be undertaken by the Panchayat Raj Institution and subsequently put to the disadvantageous position after the merger of Panchayat within the Municipal Council area.

By a conscious decision taken by the Municipal Council all the daily rated mazdoors employed by the concerned Panchayat was included in the muster roll of the Municipal Council and treated to have been employed under them.

The fate of the petitioner/respondent remains uncertain for the reasons that the Panchayat Raj Institution never framed the scheme as onetime measure to regularize the services of the daily rated mazdoors and subsequently such right is foreclosed as they have been taken in such status by the Municipal Council.

By such executive fiat the right cannot be destroyed and in view of the decision of the Supreme Court in Sant Lal (supra), the scheme framed by the Municipal Council cannot be said to have been concluded or exhausted but must be treated as continuing process. The rightful claim of the employee cannot be diminished

when they are not at fault, more particularly, when the said Panchayat was included with the Municipal Council limits. However, we are not concurring with the view of the learned Single Judge in directing the regularization of service of the petitioner/respondent without the other conditions as indicated in Uma Devi (supra) being fulfilled.

The order impugned is modified to the extent that the authority will consider the candidature of the petitioner/respondent in terms of the scheme framed by the Port Blair Municipal Council as onetime measure in compliance of the direction passed in Uma Devi (supra) within four weeks from the date of the communication of this order.

In the event, the petitioner/respondent fulfils all such conditions indicated in Uma Devi (supra), a suitable order shall be passed at par with the said 176 candidates who were extended benefits of such scheme.

The appeal is thus disposed of and the connected application, if any, is also stands disposed of.

(HARISH TANDON, J.) I agree.

(SHIVAKANT PRASAD, J.)