The Port Blair Municipal Council And ANR. v. Shri A.Subramaniam And ORS.

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [ CIRCUIT BENCH AT PORT BLAIR *** PRESENT : THE HON'BLE JUSTICE AMRITA SINHA AND THE HON'BLE JUSTICE ANANYA BANDYOPADHYAY MAT/14/2023 THE PORT BLAIR MUNICIPAL COUNCIL AND ANOTHER .... APPELLANTS VS.

SHRI A. SUBRAMANIAM AND OTHERS ... RESPONDENTS For the Appellants :

Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi For the respondent No. 1 :

Mr. Gopala Binnu Kumar Heard on :

24th August, 2023 Judgment on :

25th August, 2023 AMRITA SINHA, J.

1.

The order dated 12th December, 2022 passed in WPA/27/2022 in the matter of A. Subramaniam vs. The Lieutenant Governor and others is challenged in the instant appeal at the instance of the Port Blair Municipal Council ('PBMC' for short).

2.

By the said order the Hon'ble Single Judge directed the PBMC to absorb the writ petitioner in service of PBMC in terms of the scheme for absorption of 176 employees dated 29th April, 2011. The

terms and condition of absorption shall be same as the other 176 employees.

3.

The facts of the case have been elaborately recorded in the judgment dated 16th September, 2021 passed by a coordinate Division Bench of this Court in MA/31/2020 in the matter of Port Blair Municipal Council and others vs. A. Subramaniam. The facts are accordingly not repeated herein.

4.

The Hon'ble Division Bench in the aforesaid judgment directed the PBMC to consider the candidature of the writ petitioner/respondent in terms of the scheme framed by the PBMC as one-time measure in compliance of the direction passed in the case of Uma Devi [(2006) 4 SCC 1] within a stipulated time period. The Court directed that if the writ petitioner/respondent fulfills all conditions indicated in Uma Devi (supra), a suitable order shall be passed at par with the said 176 candidates who were extended benefit of such scheme.

5.

In compliance of the direction passed by the Hon'ble Division Bench, PBMC considered the case of the writ petitioner/respondent and rejected the same by order dated 24/25th January, 2022. The said order of rejection was challenged by the writ petitioner/respondent by filing writ petition being WPA/27/2022. Being aggrieved by the order passed by the Hon'ble Single Bench, PBMC has filed the present appeal.

6.

The grounds for rejection of the prayer of the petitioner are (i) the petitioner was not appointed in duly sanctioned post, (ii) he was

on duty by virtue of the order passed by the learned Labour Court and (iii) the petitioner is not eligible to be appointed as per the Recruitment Rules.

7.

Be it recorded that the writ petitioner was in service of the Panchayat on and from 01st November, 1995. The said Panchayat was included in the Municipal limit of PBMC and the petitioner was engaged by the PBMC on muster roll with effect from 08th January, 2016.

8.

When the petitioner was in service in the Panchayat his service was terminated. The writ petitioner/respondent challenged the termination before the Labour Court and the Labour Court by order dated 30th July, 2008, in I.D. Case No. 19 of 2004, was pleased to pass award holding that the termination of the writ petitioner was illegal and not justified. The Court held that the writ petitioner was entitled to be reinstated in service on usual scale of pay subject to further benefits of emoluments to be fixed from time to time by the Administration. The period of disengagement was directed to be taken notionally for continuity in service, however, without any back wages or monitory benefit.

9.

The award passed by the learned Labour Court not being challenged by any party attained finality and the same was duly acted upon by the authority.

10.

On a perusal of the award passed by the learned Labour Court it does not appear that the writ petitioner/respondent remained in service by virtue of the said order. On the contrary, it is evident that

the illegal termination of the writ petitioner/respondent was set aside with consequential relief of reengagement. The same has been erroneously construed by the PBMC as an order by which the petitioner held on to his service. The said ground for rejection has rightly not been accepted by the Hon'ble Single Judge. 11.

It has been stressed upon by the appellants that the initial engagement of the writ petitioner was illegal, not against any sanctioned vacant post. It has also been strenuously argued that the petitioner did not have the requisite eligibility for being appointed. The aforesaid submission of the appellants was duly considered by the Hon'ble Division Bench in the earlier appeal filed by the appellants and the Hon'ble Division Bench clearly held that an exception has been carved out where the appointment is irregular against duly sanctioned vacant post and the employee worked for more than ten years without intervention of the order of the Court, the question of regularization has to be considered on merit. 12.

In the instant case, the petitioner is in regular continuous employment on and from 01st November, 1995 without the blessing of the Court.

13.

PBMC floated a scheme for regularization of as many as 176 Daily Rated Mazdoors. PBMC is apprehensive that if the service of the petitioner is regularized, then similarly placed other eleven employees may approach PBMC for relief. The Hon'ble Single Judge took into consideration the aforesaid apprehension of the employer and held

that HR issues cannot stand in the way of lawful rights accrued by the petitioner.

14.

It appears that the appellants, time and again, are raising the same issues to deprive the rightful claim of the petitioner for regularization. All the issues raised by the appellants were duly taken care of by the Hon'ble Division Bench in the judgment dated 16th September, 2016 and the appellants ought not to be permitted to reagitate the same issues all over again. If the same is permitted to be done, then the litigation will never be over and the hapless employee will be left to run around the corridors of the Courts crying for justice.

15.

Learned advocate representing the appellants relied upon series of judgments delivered by the Hon'ble Supreme Court in support of the submission that if the initial appointment was illegal then there is no scope for regularization.

16.

The appellants ought to have appreciated that the writ petitioner was initially engaged by the Panchayat and his service has been taken over by the PBMC as the Panchayat where he was serving stood included in the Municipal limit of PBMC. The petitioner is fighting for his rights for a considerable period of time and PBMC is trying to deny the legal right of the petitioner by not regularizing his service.

17.

One of the reasons for not allowing the prayer of the petitioner by PBMC is that flood gates may open if the service of the writ petitioner/respondent is regularized. Opening of flood gates can

certainly not stand in the way of extending rightful benefit in favour of an employee if he is otherwise entitled to the same in accordance with law. Relying upon the flood gate theory to deny the lawful claim of the writ petitioner/respondent will amount to sheer miscarriage of justice which the writ court ought not to permit. To prevent a bystander/fence sitter from seeking similar relief, the legal right of an individual cannot be refused.

18.

Not regularizing the service of the petitioner in accordance with the regularization scheme will amount to discrimination with the other 176 employees whose service has been regularized. 19.

In an intra court appeal interference is called for only when there is any palpable error or infirmity in the order appealed against. In the instant case it does not appear that there has been any apparent error calling for interference. Not granting relief to the writ petitioner would amount to gross injustice to an employee who is in service for nearly 28 years by now. PBMC being 'State' under Article 12 of the Constitution of India ought not to adopt such discriminatory attitude towards the petitioner. 20.

In view of the above, we do not find any reason to interfere with the order passed by the Hon'ble Single Judge. PBMC is directed to comply with the direction passed by the Hon'ble Single Judge within eight weeks from the date of communication of this order. 21.

The appeal fails and is hereby dismissed.

22.

However, there will be no order as to costs.

Urgent certified photocopy of this order, if applied for, be supplied to the parties expeditiously on compliance of usual legal formalities.

( Amrita Sinha, J. ) I agree ( Ananya Bandyopadhyay, J.)