Uttam Shil @ Uttam Seal And ORS. v. The Lieutenant Governor And ORS.

IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction [Circuit Bench at Port Blair] Appellate Side

Present:

The Hon'ble Justice Jay Sengupta WPA 150 of 2019 Uttam Shil @ Uttam Seal and Others

Versus

The Lieutenant Governor & Others With WPA 3 of 2019 Shyni Jose

Versus

The Lieutenant Governor & Others With WPA 9 of 2019 T. Shanmugam

Versus

The Lieutenant Governor & Others

For the petitioners :

Mrs. Anjili Nag .....Advocate For the respondents :

Mr. S. Chakraborty Mr. R. Agarwal .....Advocates Heard lastly on :

20.12.2021 Judgment on :

21.03.2022 Jay Sengupta, J.:

1.

These are applications seeking regularisation of services of the respective petitioners in the post of Home Guard and grant of benefits extended to regular employees. Therefore, the said applications being WPA Nos. 3 of 2019, 9 of 2019 and 150 of 2019 are taken up for consideration together.

2.

Learned counsel appearing on behalf of the petitioners in the three writ applications submitted as follows. The petitioners are residents of the Islands. As regards WP No. 150 of 2019, the petitioner nos. 1 and 2 were appointed as Home Guards on 03.06.2005, after participating in a selection process conducted by the authorities. After three years they were not appointed by the authorities immediately, but were appointed on 20.09.2012 and 04.11.2011, respectively. In 2015 their services were further extended for a period of three years. The petitioner no. 3 was appointed on 18.08.2003 for a period of three years. He was further appointed on 18.08.2007 for another three years. Again on 20.09.2012 he was appointed upto 19.09.2015. On 04.01.2016, he was again appointed

upto 03.01.2019. After filing the present writ application, the authorities have discontinued their services. By filing the writ applications, the petitioners have sought regularisation of their services by framing a scheme or in the alternative, they could be allowed to continue their services until regular employees were appointed with the benefit of 1/30th of the pay at the minimum of relevant pay scale + dearness allowance. As regards WP No. 3 of 2019, the petitioner was appointed as a Lady Home Guard on 24.04.1991 and worked continuously till 26.12.2004, after participating in the selection process conducted by the authorities. Due to Tsunami the petitioner could not attend the place of her duty at Hut Bay and therefore, the petitioner was discharged on disciplinary ground on 17.01.2005.

Challenging the said order, the petitioner filed a writ application which was disposed of on 25.06.2005 directing the authorities to reinstate the petitioner and to issue show cause to the petitioner. After issuing show cause notice, on 29.08.2005 she was terminated from service. Vide order dated 03.01.2007, she was again appointed, but could not join due to illness of her daughter. The appointment was cancelled by the authorities on 02.02.2007. She preferred an application being WP No. 1405 of 2010 challenging the action of the authorities and this Court directed the authorities to consider the candidature of the petitioner in terms of the new Scheme. However, the representation of the petitioner was rejected on 19.03.2012. Thereafter the petitioner was appointed for a period of three years vide order dated 12.12.2012.

She was again appointed for a similar period of three years on 16.04.2016.

recall of the order dated 19.03.2012 and to appoint her on regular basis. However, after filing the instant writ application, the authorities discontinued her services. As regards WP No. 9 of 2019, the petitioners were appointed as Home Guards on different dates for a period of three years. After completion of the said period, they were reappointed on different dates. In fact, the respondent authorities had issued commendation certificates to the petitioners. All the petitioners in these applications seek regularisation of their services or in the alternative, extension of the service till regular appointment. In the cases reported in (1992) 4 SCC 118, (2006) 4 SCC 1 and (2007) 13 SCC 292, the Hon'ble Apex Court held that contractual or temporary or casual or adhoc employees could not be replaced by similar employees.

Therefore, the petitioners who were appointed on temporary basis, though for a specific period cannot be replaced by another set of temporary employees. In several other cases, the authorities had employed contractual employees on regular basis by framing a scheme dated 11.10.2011. Moreover, in the same department there could not be two sets of employees, one regular and the other who were temporary but discharged the same duties. Moreover, the Government of India had issued a Circular for all the heads of department of the Administration of the Islands on 11.10.2000. According to this, casual workers were required to be paid 1/30th of the pay at the minimum of the relevant pay scale + dearness allowance for work of 8 hours of a day.

The petitioners herein were entrusted with the duties, the nature of which was exactly like that of the regular employees and they were also working more than 8 hours a day.

Appointing fresh candidates after every three years would only lead to corruption and arbitrary action of the authorities. 3.

Learned counsel appearing on behalf of the respondent authorities submitted as follows. The Home Guards in Andaman and Nicobar Islands are governed by the Andaman and Nicobar Islands Home Guard Regulation and the Andaman and Nicobar Home Guard Rules, 1965. According to the said Rules and Regulations, Home Guards were meant to be a voluntary organisation to be used only in times of emergency. They required a specific skill set, for which tests and trainings were conducted and they enjoyed several protections. The Home Guards were paid duty, parade, travelling allowance, etc. Accordingly, the Home Guards were a special set of workers and could not be treated at par with regular workers. Furthermore, there was no master-servant relationship between a Home Guard and the Chief Commandant. In State of Manipur and Anr. vs. Ksh.

Moirangninthou Singh and Ors., (2007) 10 SCC 544, Jiban Krishan Mondal and Ors. vs. State of West Bengal and Ors., (2015) 12 SCC 74 and Grah Rakshak, Home Guards Welfare Association vs. State of Himachal Pradesh and Ors., (2015) 6 SCC 247, the Hon'ble Apex Court held that given the nature of the avocation of Home Guard, the concept of regularisation was altogether alien and could not be imported from other services. Besides, it was the admitted stand of the petitioners that their appointments were made on temporary and adhoc basis. There was also a specific tenure of appointment of Home Guard as stipulated at Clause 8 and that was for a period of three years. In the State of Karnataka vs.

Hon'ble Supreme Court held that contractual employees had no vested right to regularisation or continuity in service. The only exception to the above rule carved out by the Hon'ble Supreme Court in Umadevi (supra) was in respect of contractual employees who had worked continuously for 10 years. In such cases, a one time measure was directed by way of formulation of a scheme. In fact, a scheme was formulated by the respondent Administration in the peculiar circumstances of SLP (C) No. 10496 of 2007 where the petitioners had been employed for long durations of time ranging from 12 to 23 years. None of the present petitioners were in active service and had undergone 10 years of continuous service. Therefore, the question of framing a special scheme for them did not arise. In the absence of any documentary evidence to suggest displacement or substitution of service, there was no cause of action accruing in favour of the petitioners for continuity of service.

4.

I heard the learned counsels appearing on behalf of the parties and perused the writ petition, the affidavits filed by the respective parties as also written notes filed by them.

5.

It is true that contractual or temporary or casual or ad hoc employees ought not be replaced by similar employees. However, this ratio would be more useful in challenging the employment of such similar employees who replaced the earlier ones. Moreover, in the present case, the ratio has to be read in the light of Rule 8, which pegged the tenure of a Home guard at 3 years.

6.

So far as the present petitioners are concerned, one has to abide by the decision of a Constitution Bench of the Hon'ble Apex Court in the State of Karnataka Versus Uma Devi (2006) 4 SCC 1 where, among other thing, it was held that contractual employees had no vested right to regularisation in continuing in service. None of the petitioners herein fall within the exception carved out in Uma Devi (supra).

7.

Some of the salient observations of the Hon'ble Supreme Court in Uma Devi (supra) may be quoted as under - ...........

"The question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment"

..........

"The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily (see Basu's Shorter Constitution of India)." ......

"It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right."

.......

"The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates" ........

8.

Even the exemption carved out in Uma Devi (supra) as regards employees with 10 years continuous employment was intended to be a onetime measure. Moreover, a person had to be in active employment to claim such continuity.

9.

It is also pertinent to refer to the Andaman & Nicobar Home Guards Regulation and the Andaman & Nicobar Island Home Guards Rules. As has been argued on behalf of the Administration, as per the said regulations, Home Guards are meant to be voluntary organisation to be used only in times of emergency. They are paid duty, parade allowance, etc. Accordingly, there are special set of workers and cannot be treated at par with the regular workers. As per Rule 8, there is a specific tenure of three years for the appointment of a Home Guard. The Administration also relied on decisions of the Hon'ble Apex Court on the point that given the nature of the avocation of Home Guard, the subject of regularisation is altogether alien and cannot be imported from other services.

10.

It is also an admitted position of the petitioners that their appointments were made on temporary and ad hoc basis. The petitioners knew what kind of service they were joining.

11.

Earlier, a one-off exception was made and a scheme was formulated by the respondents in the particular circumstances of the case where the claimants had been enjoying long durations of employment, albeit contractual. As per the said Scheme being the Regularization of Home Guards Scheme of Andaman & Nicobar Administration - 2011, the prime criteria were that the Home Guard had to be in continuous service for 5 years and should be in active service as on 06.05.2009. But, the present petitioners did not fulfil this condition.

12.

Moreover, so far as the decision of the Hon'ble Single Judge of this Court passed on 03.04.2014 in WP No. 045 of 2014 (Sri U Binu vs. Union of India & Ors.), as affirmed by the Hon'ble Division Bench and relied upon in WPA /3/2019, is concerned the same primarily relates to whether the petitioner therein, in spite of a purported discharge, could be deemed to have been in continuous service of 5 years as on the stipulated date i.e., 06.05.2009. There, it was held that it could not be said that the petitioner was discharged on disciplinary grounds in 2002 and that the decision of a Single Bench had the effect of setting aside the order of discharge. Thus, the said decision is distinguishable on facts from the present case. 13.

Even if one takes into account the claim of the petitioner in WPA/3/2019 that she was in continuous service from 1991 to 2004, the same would be of no help as she was dismissed on disciplinary ground. In respect of the scheme of regularisation, among other things, she was not in such employment on the stipulated date. She was, thus, not even eligible for the 2011 scheme. Therefore, there is no illegality in the reasoned order

dated 19.03.2012 refusing regularisation. After this, she was twice appointed on ad-hoc basis. She has now attained the ordinary outer age limit for a home guard. At this belated stage, she cannot be permitted to reopen the issue all over again.

14.

On the contrary, the respondent authority in WPA/150/19 had directed that the issue of re-enrolment of the petitioner as per usual norms would still be considered.

15.

For the foregoing reasons, I do not find any merit in these applications.

16.

Accordingly, the writ applications are dismissed. 17.

However, there shall be no order as to costs. 18.

The petitioners eligible for re-enrolment as Home Guards and who have not been so recommended by the respondent authority as yet, may still make fresh representations before the respondent authorities, for further enrolment on usual terms, which shall be considered by the respondents in accordance with law.

19.

Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.

(Jay Sengupta, J.) P. Adak