The Lieutenant Governor And ORS. v. P. Kathiresan And ANR.

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE HARISH TANDON And THE HON'BLE JUSTICE SHIVAKANT PRASAD WP.CT/51/2020 The Lieutenant Governor and others ...

Petitioners Vs.

P. Kathiresan and another ...

Respondents For the petitioners : Mr.Krishna Rao, Advocate For the respondents : Mr.G.Binnu Kumar, Advocate Heard on : September 14, 2021 Judgment on : September 20, 2021 HARISH TANDON, J.

The present writ petition is taken up against the order dated 03rd June, 2019 passed by the Central Administrative Tribunal, Kolkatta branch in O.A. No. 133/AN/2016 whereby and

whereunder the appellants authorities were directed to regularize the services of the private respondent with effect from 25th September, 1996 in the group D post which has been redesignated as Multi Tasking Staff after implementation of 6th Central Pay Commission within one month of from the date of the receipt of the said order.

The facts which emerged from the writ petition that the private respondent was appointed as daily rated mazdoor by the Principal, District Institute of Education & Training (DIET), Garacharma, Port Blair, South Andaman for discharging the duties of the Chowkidar. The services of the petitioner was availed for nearly sixteen years until 29th February, 2012. After the break of brief period the petitioner was taken back into the service by virtue of an order No. 1160 dated 13.03.2012 initially for the period of one months and eleven days and ultimately on and from 11.04.2012 the private respondent was illegally terminated from service. The appointment orders though indicated that the private respondent was employed as part time worker but was allowed to render full services and in fact he worked for more than twelve hours in a day which is evident from the orders issued to the private respondent.

It is stated by the private respondent that even the Director of Education vide circular dated 05th October, 2006 open the service book and all others formalities were also performed by the appellant authorities which would suggest that the private respondent was in fact employed against the sanctioned post and continued to work for more than sixteen years uninterruptedly. It is further stated that the earned leave for thirty five days was also given to the private respondent and in some occasions such earned leave availed by the private respondent was regularized and was treated as paid leave.

The aforesaid incidences would prove that the private respondent was in fact allowed to continue in rendering services interruptedly to the post of the Chowkidar as daily rated mazdoor and therefore such services are required to be regularized in terms of the mandate of the Supreme Court given in case of Secretary, State of Karnataka and others vs. Uma Devi and others reported in (2006) 4 SCC 1.

Since the authorities did not entertain the case of the petitioner despite several representation having made, the tribunal application being OA No. 107/AN/2012 was filed before the Central Administrative Tribunal which came up for disposal on 30th September, 2015. While disposing of the same the

Tribunal observed that the respondent authorities should analysis the actual scenario pertaining to the service of the private respondent and if his claim of continuous service as a daily rated worker since 1996 without any break is ultimately found that the benefit under paragraph 53 of the Uma Devi (supra) should be extended to him, ultimately, the direction was passed upon appellant authorities to consider the case of the petitioner within three months from the date of receipt of the copy of the order. Pursuant to the said direction the authorities by an order No.

dated 21st July, rejected the representation/application of the private respondent as the private respondent does not have the requisite qualification in terms of the recruitment rules.

It would be relevant to adumbrate the facts recorded in the said order by the authority, it is indicated there in that the petitioner was engaged as daily rated mazdoor since September, 1996 which was extended upto March, 1999 and thereafter was engaged on a part time basis from the month of April, 1999 till the month of the March, 2003. Subsequently, the engagement of the private respondent was made on a contract basis for the post of Chowkidar from March, 2003 which ended in the month of February, 2012. Since the service was discontinued with effect

from 01st March, 2012 but because of the implementation of the Right to Education Act, 2009 wherein the pre primary education was made compulsory to the primary school, the Administration required sufficient numbers of the part time post of the Pre Primary Teacher created upon the surrender of the other categories of part time post. On the other hand after the recommendation of the Sixth Central Pay Commission the Administration declared all the group C post in a common category with new designation as Multi Tasking Staff and promulgated the recruitment rule fixing the educational qualification and the mode of recruitment through direct recruitment.

It further appears that the entire group D post of the Andaman and Nicobar Administration was upgraded to group C and merged in the aforesaid single cadre of Multi Tasking Staff. It is further indicated that the minimum education qualification of such Multi Tasking Staff is class 10th pass and the petitioner who admittedly have a certificate of class 9th pass does not come within preview of the said recruitment rules. The private respondent challenge the said order before the Tribunal, as indicated above, and by the impugned order the Tribunal recorded that since the private respondent was engaged

on casual basis from 1996 and at relevant point of time, the educational qualification was class 8th pass and the petitioner having possess the certificate of class 9th pass, it would not be fair to insist for higher educational qualification subsequent to the initial stage of appointment. The Tribunal thereafter set aside the order No. 2381 dated 21st July, 2016 and directed the appellant authorities to regularize the service of the private respondent with effect from 25th September, 1996 in the group D post re-designated at Multi Tasking Staff after implementation of Sixth Central Pay Commission in terms of paragraph 53 of the Uma Devi case (supra) within one months from the date of the communication of the said order.

The Administration in the instant writ petition challenged the said order of the Central Administrative Tribunal on various grounds including that the petitioner was initially employed as daily rated mazdoor or on casual basis but subsequently his employment was changed to a part time employment against a fixed remuneration, therefore, do not satisfy the conditions enshrined in Uma Devi (supra). According to the petitioner, the authorities considered the past incidence of the services of the petitioner which would be reflected from order of the 21st July, 2016 and the Tribunal proceeded on the wrong premise that the

representation/application of the private respondent was rejected solely on the ground that he was not possessing the requisite educational qualification enshrined in the recruitment rule. On the other hand the learned advocate for the private respondent submits that the nomenclature of the service does not destroy the regular appointment on a casual basis which would be evident from the orders of appointment passed by the authorities from time to time. It is further submitted that the authorities rejected the representations/applications of the private respondent solely on the ground of lack of educational qualifications enshrined in the said recruitment rules and not on any other ground as submitted by the private respondent. It is further submitted that the successful discharge of the duties for a considerable period of time i.e.

the sixteen years is required to be considered as sufficient qualifications and the authorities would treat such experience gained by passage of time as educational qualifications and there is no impediment on their part to relax such criterion as held in case of Gurajat Agricultural University & others Vs. Rathod Labhu Bechar & others reported in 2001 (3) SCC 574.

effect. It is further submitted that there must be a clear indication that the subsequent rule is operative from a retrospective effect and in absence thereof the educational qualification at the time of initial appointment must be regarded as the requisite qualifications for the purpose of regularization of the service and placed reliance upon a judgment in Marripati Nagaraja & others Vs. Government of Andhra Pradesh, reported in 2007 (11) SCC

522. It is further submitted that the rule which was applicable at the time of vacancy having arisen is required to be adhered to and placed reliance upon a judgment of the Supreme Court in the case of Y.V.Rangaiah & others Vs. J.Srinivasa Rao & others reported in 1983 (3) SCC 284. It is thus contended that the stand of the appellant authorities were not sustainable and there is no infirmity and/or illegality in the order of the Tribunal in this regard.

From the respective submissions and the pleadings of the parties, the pivotal issue which emerged therefrom is whether the appellant authority by an order dated 21st July, 2016 rejected the representations/applications of the private respondent solely on the ground that he has not possessed requisite educational qualifications in terms of the rules framed on the basis of the recommendation of the Sixth Central Pay Commission for appointment to the post of multi tasking staff. Such being the

point, it is an ardent duty of this Court to meticulously examine the stand of the authority surfaced from the order dated 21st May, 2016. It is undisputed that the said order sees the birth on a direction of passed by the Central Administrative Tribunal in an earlier application filed by the private respondent. It is indicated therein that the authorities have examined the case made out by the private respondent and reproduced the facts which emerged from the record. The said order would further discloses the appointments of the private respondent on diverse periods and sometime the nomenclature is shown as the employment on a part-time basis for a brief period of four years.

The appointment of the private respondent as Chowkidar on a contractual basis continued till 2012 and the ultimate decision is taken in the following manner:- "AND WHEREAS, the applicant has worked in this Education Department for more than 10 years against Daily Rated, Contract Basis and Part Time Basis without intervention of order of any Court. But he does not possess the requisite education qualification as per RR. Which was made compulsory for appointment of MTS as per VI CPC NOW THEREFORE, in view of reasons narrated as above, the undersigned is constrained not to consider the request of the applicant for regularization of his service in the in the absence of requisite qualification and which offends the recruitment rules. The applicant may acquire the requisite qualification before apply for regular post of MTS."

It can be reasonably ascertained thereform that the though the expression "in view of the reasons narrated as above" has been recorded therein but the subsequent language used therein gives an impression that the claim of the private respondent was rejected on the ground of lack of requisite educational qualification. The rule is also annexed to the writ petition and the requisite educational qualifications for multi tasking staff is class passed certificate from a government recognized board/institution or ITI passed certificate from a government recognized institution. It also appears from the pleadings made in the instant writ petition that the aforesaid rule was promulgated by creating a separate cadre and the group-D post was merged into the newly formed cadre.

Nothing would reveal from the said rule that a person working on casual basis at group-D post after regularization of the service prior to the promulgation of the said recruitment rules would be kept outside purview thereof if they do not have the requisite educational qualifications.

ground of lack of requisite educational qualifications. To that extent we do not find any ambiguity, infirmity and illegality in the order of the Tribunal, but we cannot agree with the order of the Tribunal for the simple reason that the order No.2381 dated 21st July, 2016 contained various antecedents of the service, the nature of the engagement and the consequences flows therefrom. In the case of Y.V.Rangaiah and others (supra) the Apex Court held that if the vacancy arose prior to the birth of the amended rules it will govern by old rules. We do not find any quarrel to the proposition but the same is required to be applied in the attending facts and circumstances upon a proper reasons to be recorded in this regard.

In Gujarat Agricultural University (supra) the Apex Court had held that if the daily rated workers have completed 10 years or more of continuous service subject to the condition that he possess prescribed qualification for the post at the time of an appointment and if the educational qualification is changed such daily rated worker who worked on the aforesaid post for such a long year without any complaint is entitled to relaxation of the aforesaid eligible condition.

expanded to the educational qualifications. There is a complete silence on this regard. In case of Marripati Nagaraja & others (supra) the Apex Court has said that though the State is within its power to make the rule operative from a retrospective effect but the same must be specifically indicated in such rule. In other words it is held that the rule promulgated subsequently shall always be intended to operate prospectively unless the State intended to operate retrospectively. We fail to find out the applicability of the aforesaid judgment in the instant case for the simple reason that the case of regularisation has to be considered on the basis of the extant rule when the right to regularization accrued.

It is beyond cavil of doubt that the mandate in Uma Devi (supra) is to be construed in the perspective of the requisite conditions recorded therein and the Court/Tribunal should be slow and circumspect in directing the regularization of the order. There is no finding recorded in the impugned order whether the nomenclature of the engagement, in effect, tentamounts to continuance of the engagement on casual basis or as daily rated mazdoor before venturing to pass an order for regularization.

In our view, the Tribunal has not considered the case in the perspective as indicated above and it would not be proper for us to decide the issue as a Court of first instance. The order impugned is set aside.

The Tribunal is directed to reconsider the application filed by the private respondent in the light of the observation made hereinabove upon recording the finding on all the issues raised before it. It is expected that the Tribunal will dispose of the said application within four weeks from the date of communication of this order.

The writ petition is allowed.

There shall be, however, no order as to costs. (HARISH TANDON, J.) I agree.

(SHIVAKANT PRASAD, J.)