Mohammad Aslam And ORS v. The Union Of India And ORS
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** WP.CT/6/2024 Mohammed Aslam and others Vs.
The Union of India and others Mr. S.Samanta Mr. K. Sabir ... for the petitioners Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondents January18, 2024 [SR] Item No.2 The petition has been filed by 92 persons, aggrieved by an interim order passed by the learned Central Administrative Tribunal, Kolkata Bench, Port Blair Circuit in OA/351/19/2024. By the order dated January 05, 2024, the learned Tribunal protected the petitioners to the extent that the respondents would allow the petitioners to continue as teachers under the Sarva Shiksha Abhiyan, U.T Mission Authority, unless any adverse report was found against the petitioners.
The petitioners have challenged the aforementioned order on the ground that the interim protection would be of no consequence, if the respondents were allowed to continue with the recruitment process, for engagement of regular teachers in the establishment. Referring to the vacancy notice and the advertisement, which was published on July 11, 2023, it is submitted that the Andaman and Nicobar Administration, Directorate of Education, was trying to fill up the posts of Primary School Teachers in different subjects and mediums in Group 'B'. In the event, such recruitment process is completed and the posts are filled up, there would be no available posts for the petitioners to be accommodated, if the petitioners are ultimately successful in their prayer for regularisation. Mr. Samanta, has relied on another decision of the learned Tribunal dated July 06, 2023, in which an interim order was
passed by referring to an order of the High Court in another proceeding. The relevant portion is quoted below:- "The High Court had observed that in the interest of 49 members of the Union, who were claiming regularisation at par with 115 Daily Rated Mazdoors, even if the recruitment process notified should continue, the respondent/Administration, should not raise the plea of unavailability of posts for regularisation of 49 workmen, in the event such regularisation order was passed in the proceeding pending before the learned Labour Court."
Mr. Samanta submits that atleast, a similar order should be passed by this Court by modifying the order of the learned Tribunal, as the issue of regularisation of the petitioners is yet to be decided. If all the posts are filled up, pursuant to the vacancy notification, the respondents may raise a plea later on, that there were no available posts and there was no scope to absorb the petitioners.
Relying on another decision of the Hon'ble Apex Court in the matter of Civil Appeal No.5014 of 2023, Mr.Samanta submits that the Hon'ble Apex Court had also permitted regularisation in the islands.
Another Office Order dated December 15, 2023, issued by the Deputy Secretary, Andaman and Nicobar Administration has been relied upon by Mr. Samanta, to impress upon us the fact that the respondents had regularized the appointment of Lecturers, on orders of the Hon'ble Supreme Court.
Mr. Samanta submits that it had become the tendency of the Administration to take advantage of the unemployed youths by appointing them on adhoc basis and thereafter continuing with such adhoc appointment without taking any steps towards their regularisation. This, according to Mr.Samanta, was an exploitation. Mr.Shatadru Chakraborty, learned advocate appearing on behalf of the Administration submits that the petitioners have been
sufficiently protected. Pending a decision as to whether the petitioners should be regularized or not, the Tribunal had ensured that the petitioners are not unjustly removed from their contractual engagements.
Reference is made to the order No.744 issued by the State Project Officer dated January 13, 2009, on the basis of which the candidates were appointed under the Sarva Shiksha Abhiyan. Mr. Chakraborty submits that the office order categorically stated that the candidates, who applied in response thereto would be engaged under the said Mission. They would not have any claim/rights whatsoever, in future, for any regular or contractual appointment. Mr. Chakraborty also relies on the decision of the Hon'be Apex Court in the matter of Union of India and others vs. Ilmo Devi and another reported at 2021 SCC OnLine SC 899 and submits that the Hon'ble Apex Court had deprecated the practice of the High Courts in directing regularisation. Regularisation was not a matter of right and the High Court, sitting in its writ jurisdiction, should not direct the Administration to frame a policy for regularisation. Such direction was beyond the power of judicial review.
We agree with Mr.Chakraborty on the principle that regularisation is not a matter of right. No further interim protection can be given to the petitioners, apart from what has been already given by the learned Tribunal. The decision cited by Mr. Samanta in A & N Adminnisration & Ors vs. A. Umapathi decided on 06.07.2023 in MA 351/546/2023 ( In OA 351/570/2023) would not be applicable to this case. The reference to the order of the High Court was in a matter where the issue was whether 49 persons, who claimed to be similarly situated as 115 workmen who were already directed to be regularized on an award of the Labour Court, should get protection during pendency of the lis. The High Court observed and had passed necessary interim protection so that the authority could not raise a plea of non availability of vacancy. When allegedly similarly situated workmen had been
directed to be regularized, by an award already passed by the Labour Court, such protection was given.
The petitioners responded to the notification issued by the State Project Officer, Sarva Shiksha Abhiyan and applied for selection to the posts of Sarva Shiksha Contract Teachers. The office order referred to categorically stated that the appointments were contractual and candidates would not have any right of regularisation.
The Administration decided to fill up the posts of Primary School Teachers. The petitioners filed representations seeking regularization. The petitioners filed an original application. Authorities were asked to consider the representation of the petitioners. The prayer for regularisation was rejected. The petitioners filed OA/351/19/2024.
Appointments and initiation of recruitment drives are squarely the function of the Administration and the Courts cannot interfere with such decision, unless there is something palpably arbitrary, illegal and malafide. The respondents are within their right to initiate the recruitment process. Courts should not venture into the domain of the executive and pass orders in anticipation. The engagement of the petitioners under the Sarva Shiksha Abhiyan and the regular appointment of teachers pursuant to the vacancy notice are two different methods of recruitment. They do not overlap.
The appointment under the Mission is under a separate policy of the Department of Education of the UT Mission. Thus, even if the petitioners ultimately succeed in their original application, it will be for the Administration to figure out how to absorb such persons, but no fetters can be put on any ongoing regular recruitment process.
It is not for the Court to stall a particular selection process or make any observation on a selection process, which is not under challenge before this Court.
In our opinion, the learned Tribunal had sufficiently protected the petitioners to the extent that till the issue is decided by the Tribunal, the petitioners would not be disturbed, lest the authority takes a decision to do away with the contractual engagement, after having sufficient number of teachers available, once the recruitment process is concluded.
Under such circumstances, we do not find any reason to interfere with the order impugned.
The learned Tribunal will proceed with the matter independently on its own merits.
The observations made hereinbefore, are prima facie.
The writ petition is accordingly disposed of. ( Shampa Sarkar, J. ) ( Tirthankar Ghosh, J. )