Smt. T.Leena v. The Union Of India And ORS.

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION [ CIRCUIT BENCH AT PORT BLAIR ] *** WP.CT/2/2023 Smt T. Leena Vs.

The Union of India and others Mr. Gopala Binnu Kumar ... for the petitioner Ms. Anjili Nag ... for the respondents February 14, 2023 [SR] Item No.1 Heard Mr. Gopala Binnu Kumar, learned counsel appearing for the petitioner and Ms. Anjili Nag, learned counsel appearing for the respondents.

The brief fact of the case for disposal of this writ petition is to the effect that the petitioner was engaged by the Department of Rural Development, Panchayat Raj Institution in the year 2002 in accordance with proper selection process. In terms of the appointment order dated 29th July, 2002, the applicant, who was recommended for the post of Draughtsman Grade-III (Civil) was kept on probation for a period of two years.

The grievance of the petitioner is that though the probation period has been ceased since long, she has not yet been confirmed in the post, she joined for which, she has been deprived of her legitimate dues of ACP and MACP. It is submitted by learned counsel for the petitioner that owing to inaction on the part of the respondent no.5, the

petitioner has been put to huge financial loss in the meantime.

From the impugned order, we find that before the Tribunal, learned counsel for the respondents, upon instruction, had submitted that the petitioner could not be confirmed in the meantime as the Lieutenant Governor had taken up the issue of merging the post of Panchayat Raj Institution with that of APWD, Andaman and Nicobar Administration. Such action of merger of the cadres was challenged by some of the Junior Engineers before this Court in WPCT/032/2009, WP/004/2009, WP/003/2009. This Court, upon hearing the parties, stayed the order of merger issued by the Lieutenant Governor. The said order passed by this Court staying the order of merger was taken before the Hon'ble Apex Court in CA Nos.8255/2009 and 8257/2009. The Hon'ble Apex Court was pleased to set aside the order of stay.

It was further submitted before the Tribunal that the power of Lieutenant Governor regarding merger of the cadres which was under challenge in the High Court, was restored back after setting aside of the stay order passed by the High Court in the aforesaid Civil Appeals.

Learned counsel for the respondents further submitted that the petitioner is to be confirmed with or bestowed with proper confirmation from due date, which is under active consideration of the department but no order has been issued till date.

Before us, learned counsel for the petitioner submits that thought the order was passed in favour of the petitioner as reflected in paragraph 9 of the order, a rider was ordered to be added to the confirmation order of the petitioner that the benefit granted to the petitioner shall be subject to outcome of pending proceedings before the High Court. Learned counsel for the respondents, on the other hand, submits that when the writ petitions are pending before the High Court, there may be problem in according the relief granted by the Tribunal.

On consideration of the issue in question, we fail to understand in what manner confirmation of the petitioner in her present cadre, is going to be affected by pendency of the writ petition, in which the question of merger of the cadre of Panchayat Raj Department with APWD is pending consideration.

Be it merger or be the cadre of petitioner is an independent one, she is entitled to be confirmed in the post after completion of her probation period and that was precisely the submission advanced by the learned counsel for the appellant before the Tribunal.

Taking into consideration such facts, we deem it just and proper and in the interest of justice to clarify the order of learned Tribunal in paragraph 9 which reads thus- "9. Learned counsel for the respondents pointed out that the main matter is still pending before the Hon'ble High Court, therefore, the benefits that would accrue to the applicant may be granted subject to the outcome of the pending proceedings before the Hon'ble High Court, if

the same has any bearing whatsoever in the present matter."

From the aforesaid order, it is clear to the extent that the order has been passed directing the respondent to accord confirmation to the petitioner in her present post, subject to outcome of the pending writ petition before the High Court if the same has any bearing whatsoever in the present matter. Though the order passed by learned Tribunal should not have been subjected to such condition inasmuch as question of confirmation is quite different from the question of the merger of cadre. Whether there is merger of cadre or no merger of cadre, the petitioner is entitled to the benefit of confirmation after completion of her probation period.

However, for the sake of convenience of the Administration, the order in paragraph 9 having been passed subjecting the confirmation of the petitioner to the outcome of the pending writ petition before this Court, if the same has any bearing whatsoever, so far as the confirmation is concerned, it becomes the duty of the respondents not to sit idle over the matter, but to find out whether the pending writs have any bearing on the question of confirmation of the petitioner in the post in her parent cadre,. If there is no semblance of bearing then, there is no necessity of subjecting the petitioner's confirmation in the post of her parent cadre to the outcome of the pending writ petitions.

The respondents are, therefore, directed to do the needful to accord confirmation to the petitioner within a period of two months from the date of receipt of a copy of this

order without prejudice to the claim of the respondents in the pending writ petitions before this Court.

It is needless to mention here that on issuance of order of confirmation, all financial benefits, which the petitioner is entitled to receive should be bestowed on her in accordance with law from the date of confirmation.

With the aforesaid observations and directions, the writ petition being WP.CT/2/2023, is disposed of. No order as to costs.

( Chitta Ranjan Dash, J.) ( Md. Nizamuddin, J. )