R. Sundar Rao v. The Union Of India And ORS.

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] ...

WPCT/21/2022 R.Sunder Rao ...

Petitioner Vs.

The Union Of India and others ...

Respondents Mr.Gopala Binnu Kumar ... for the petitioner Mr. Shatadru Chakraborty ... for the respondent No.4 November 25, 2022 [Bithika] Item No.7 Challenge in this writ petition is against the order dated 24th August, 2022 passed by the Central Administrative Tribunal, Kolkata Bench (hereinafter be referred to as the Tribunal) in OA No. 178/2022 (Port Blair).

In the Tribunal application the petitioner, inter alia, sought for direction that a vacancy notice dated 30th December, 21 for filling up one post of Welfare Officer (Handicapped) on contractual basis advertised by the Directorate of Social Welfare be quashed and direction upon the concerned respondent to allow the petitioner to continue in the post of Welfare Officer (Handicapped) till the same is filled up on a regular basis.

By the order impugned the learned Tribunal disposed of the Tribunal Application with the following direction:- "It is no more res integra that an adhoc employee cannot be replaced by another adhoc employee. It is evident that the present applicant has been admittedly rendering service, albeit on adhoc/contractual basis since 2018. Therefore, in view of the decisions cited (supra), it is directed that if the respondents need the service, the applicant has been rendering so far upto 15.04.2022, they shall engage the applicant and continue him till a regular appointment is made against the said vacancy."

The petitioner seeks the modification of the order of the learned Tribunal to this extent that the respondent authorities, particularly the respondent No. 4, be directed to extend the contract period of the petitioner for the post of Welfare Officer (Handicapped) on contractual basis with effect from date of the expiry of the last extension till the petitioner is replaced by regular selected candidate. The facts which led to the filing of the Tribunal application may be summarized as under:- The petitioner has Master Degree in Sociology. He is a disabled person having locomotor disability of more than 60%. In response to an advertisement dated 24th

November, 2017 published in a local Newspaper "The Daily Telegram" issued by the Directorate of Social Welfare the petitioner applied for the post of Welfare Officer (Handicapped). Ultimately, the petitioner was engaged for the post at the monthly pay of Rs. 30,000/- for a period of eleven months and this period of engagement was extended from time to time upto 23rd November, 2021. By a subsequent office order dated 8th December, 2021 the respondent No. 4 extended the service of the petitioner for 38 days from 24th November, 2021 to 31st December, 2021. Meanwhile, on 7th October, 2021 a paper publication was made in a English Daily "The Daily Telegram" under the caption "No endless continuation of contractual employees, year after year" whereby the respondent no.

4 deemed it appropriate to replace one set of contractual employees by another set of contractual employees. The respondent No. 4 informed the petitioner that as per the paper publication dated 7th November, 2021 the contractual employee would not be allowed to continue their services after 31st December, 2021. However, the petitioner submitted a representation to the respondent No. 4 seeking extension of his contractual appointment for a further period. But getting no response thereto he filed a Tribunal application being No.

giving liberty to the petitioner to challenge the vacancy notice. Accordingly, he filed the aforesaid Tribunal application and by the impugned order as above the application was disposed of.

By filing affidavit-in-opposition the respondent No.4 controverts the substantiate averments as made in the writ petition. However, the petitioner denies it by filing affidavit-in-reply.

Be that as it may, the respondent No. 4, during hearing produced some documents relating to proposal of revival of the post of Welfare Officer (Handicapped) on contractual basis and the same have been kept on record.

Admittedly, the post of Welfare Officer (Handicapped) was created in the year 1999 by the competent authority in exercise of its statutory power. We do not find any paper which will evince that the post of Welfare Officer (Handicapped) lawfully created in the year 1999 has ever been abolished by any authority exercising power in this regard under any statutory document. Rather, the proposal submitted by the concerned authority is for revival of the post of Welfare Officer (Handicapped) and reads that this post needs to be retained for effective implementation of the Government Schemes for welfare of Handicapped which was lying vacant since its creation.

As stated above, in the absence of any statutory documents to abolish the aforesaid post, we are of the view that the post of Welfare Officer (Handicapped) still exists.

Admittedly, the petitioner was engaged as the Welfare Officer (Handicapped) on contractual basis and his service continued till 30th December, 2021.

Thereafter, his service was discontinued by the respondent No.4 on the plea that the said post would be filled up by another candidate on contractual basis vide a vacancy notice dated 30th December, 2021 published in a newspaper.

It is the grievance of the petitioner that despite the desire expressed by the learned Tribunal, the respondent No. 4 did not allow him to continue his service as the Welfare Officer (Handicapped) on contractual basis. In a decision dated 21st April, 2022 rendered in Civil Appeal Nos. 3084 - 3088 of 2022 ( Manish Gupta and another etc Vs. President, Jan Bhagidari Samiti and others etc), the Hon'ble Apex Court has categorically held that an adhoc employee cannot be replaced by an another adhoc employee and he can be replaced only by another candidate who is regularly appointed by following a regular procedure as prescribed.

Therefore, the discontinuation of the service of the petitioner of the aforesaid post on the plea that the post

will be filled up by another contractual employee is bad in law.

In view of the above, the writ petition may be disposed of on modification of the impugned order of the learned Tribunal with the following direction:- The respondent No. 4 is directed to allow the petitioner to continue his service as the Welfare Officer (Handicapped) on contractual basis till he is replaced by a candidate to be appointed regularly following the procedure as prescribed by law forthwith. However, it is made clear that the petitioner shall not be entitled to any remuneration for the period during which his service remained discontinued.

Accordingly, the writ petition is disposed of. No order as to costs.

All parties to act in terms of a copy of the order downloaded from the official website of this Court. Urgent Xerox certified copy this order be supplied to the Learned Counsel appearing for the respective parties upon compliance of usual formalities. (RABINDRANATH SAMANTA, J.) (SUBRATA TALUKDAR, J.)