Andaman Sarvajanik Nirman Vibagh Mazdoor Sangh And ANR v. Union Of India And ORS.

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE DEBANGSU BASAK WPA/547/2024 ANDAMAN SARVAJANIK NIRMAN VIBAGH MAZDOOR SANGH AND ANOTHER ... PETITIONERS VS.

UNION OF INDIA AND OTHERS ...

RESPONDENTS For the petitioners :

Mr. Gopala Binnu Kumar, Ms. Vinita Devi Ms. Monisha Mondal Mr. Samson Stephen Mr. Vigneshwaran For the respondent No. 1 to 3 :

Ms. Aishwarya Bhati, ASG Ms. Shreya Jain [through virtual mode] Mr. V.D. Sivabalan For the respondent No. 4 :

Mr. Rakesh Kumar Heard on :

February 19, 2026 Delivered on :

February 19, 2026 DEBANGSU BASAK, J.

1.

The writ petitioners assail a letter dated December 13, 2023 issued by the authority. By such letter Department of Personnel and Training

refused to grant concurrence to a scheme for regularization formulated by the Administration. This decision is under challenge. 2.

Learned Advocate appearing for the writ petitioners submits that, issue of remuneration to Daily Rated Mazdoors (DRMs) appointed by the Andaman and Nicobar Islands Administration and the issue of their regularization received consideration of the High Court. He refers to the orders dated December 13, 2019 passed in WPA 268 of 2018, and December 19, 2022 passed in MA 9 of 2020. He submits that, the authorities were directed to formulate a scheme for the benefits of the DRMs by the Appeal Court.

3.

Learned Advocate appearing for the petitioners submits that, since the authorities did not comply with the direction of the High Court dated December 19, 2022, a contempt petition was filed. Being aggrieved by one of the orders passed in contempt petition, the authorities approached to the Hon'ble Supreme Court. Before the Hon'ble Supreme Court, an exercise was undertaken to formulate a scheme for regularization for the DRMs.

4.

Learned Advocate appearing for the petitioners draws the attention of the Court to the order dated August 14, 2023 passed in Civil Appeal No. 5014 of 2023. He submits that, the statements made by the Administration with regard to the formation of a regularization scheme were noted therein.

5.

Learned Advocate appearing for the petitioner submits that, subsequent to the order of the Hon'ble Supreme Court, a notification was issued by the Administration. A scheme by the name of Andaman and Nicobar Islands Casual Labours/ Designated Mazdoors (DRMs) (Engagement and Regularization) Scheme, 2023 was approved in principle. He refers to various provisions of the scheme. He submits that, the scheme does away with the distinction between DRMs working against sanctioned post or otherwise. He submits that, beneficiaries of the scheme would be casual labourers / daily rated mazdoors who put in specified continuous period of service as on August 01, 2023 without availing protection of any interim order of Courts or Tribunals. 6.

Learned Advocate appearing for the petitioners draws the attention of the Court to the letter dated August 30, 2023 issued by the Administration to the Ministry of Home Affairs. In particular he draws the attention of the Court to the contents of such letter where, meetings being held under the Chairmanship of the learned Attorney General of India at New Delhi on August 7, 2023, August 10, 2023 and August 12, 2023 were stated. He submits that, the Administration, accepted the fixation of cutoff date of 10 years continuous service of DRMs as on August 1, 2023 instead of April 10, 2006 since only about 10 DRMs out of 7,520 would be eligible if cutoff date is considered as on April 10, 2006. He also points out that, the distinction between DRMs working against sanctioned post or otherwise was removed.

7.

Learned Advocate appearing for the petitioners draws the attention of the Court to the letter dated August 30, 2023 by which the Administration sought concurrence and ratification of the Scheme of 2023 from the Ministry of Home Affairs. He submits that such letter refers to the advice of the learned Attorney General of India on the issues. He submits that the Scheme of 2023 was formulated in accordance with such advice.

8.

Learned Advocate appearing for the petitioners submits that in Civil Appeal No. 5014 of 2023 the order dated September 09, 2024 was passed. He submits that, on issue of regularization, since, Department of Personnel and Training of the Union of India was not a party to the earlier proceedings, parties were left open to avail of their remedies before the appropriate Court. He submits that, the writ petitioners are now before Court, since, the Department of Personnel and Training is not according sanction to the Scheme of 2023 formulated by Administration. 9.

Learned Additional Solicitor General appearing for the respondents submits that, no special circumstances exists in the Andaman and Nicobar Islands for the authorities to extend any special benefits to any DRMs who works there. She submits that, the authorities are bound by the ratio of 2006 (4) SCC 1 (Secretary, State of Karnataka and others vs. Umadevi (3) and others) and 2010 (9) SCC 247 (State of Karnataka and others vs. M. L. Kesari and others). She submits that the Scheme of 2023

does not adhere to the parameters laid down therein. Therefore, no approval can be granted to such Scheme.

10.

Learned Additional Solicitor General submits that, no similar scheme as that of the Scheme of 2023 is prevailing in any part of the country. She also points out that, the issue as to the legality, validity and sufficiency of the Scheme of 2023 was kept open as will appear from the order dated September 9, 2024 passed by the Hon'ble Supreme Court. Therefore, according to her, the scheme not being in accordance with the pronouncements of Uma Devi (3) and M.L. Kesari the same was rightly not approved by the Department. The scheme cannot be directed to be implemented as against the Administration.

11.

Learned Additional Solicitor General submits that, in terms of the Scheme of 2023, an onetime exercise was undertaking and that, 122 DRMs were regularized. The Scheme of 2023 is not an open ended scheme. It is for one time implementation, which occurred. Therefore, question of directing implementation of the Scheme of 2023 does not arise.

12.

Plight of DRMs fell for consideration of the High Court in a Writ Petition being WPA 268 of 2018. Such writ petition was disposed of on December 13, 2019. Directions for ameliorating the plight of the DRMs were issued.

13.

Being aggrieved by the directions contained in the order dated December 13, 2019 passed in WPA 268 of 2018, an appeal was carried being MA 9 of 2020. MA 9 of 2020 was disposed of by an order dated December 19, 2022. By the order dated December 19, 2022, the Appeal Court modified few directions of the learned Single Judge dated December 13, 2019 passed in WPA 268 of 2018. Appeal Court recorded that the benefits extended to the DRMs under the Circular dated September 22, 2017 will accrue only with effect from the date of the circular and not before that. So far as benefits of the earlier circular dated June 7, 1988 is concerned, the same remained preserved and undisturbed to be agitated in the event any person is aggrieved by any scheme proposed by the Administration. Appeal Court, by the order dated December 19, 2022 required the Administration to frame a Scheme for all DRMs. 14.

Administration did not implement the order dated December 19, 2022 passed by the Appeal Court. Contempt petition was filed. Being aggrieved by one of the orders of the Appeal Court passed in contempt jurisdiction, the Administration approached the Hon'ble Supreme Court which was registered as Civil Appeal No. 5014 of 2023. Civil Appeal No. 5014 of 2023 was disposed of by an order dated August 14, 2023. While noting various aspects of the matter, Hon'ble Supreme Court on August 14, 2023, also recorded the stand of the Administration with regard to the regularization scheme. In fact, the affidavit filed by the Administration before the Hon'ble Supreme Court, was set out in extenso with regard to

the regularization. Paragraphs 11 to 20 of the additional affidavit was quoted in the body of the order.

15.

Before the Hon'ble Supreme Court, the issue as to the cutoff date of commencement of the regularization scheme was deliberated upon. It was found that, in the event that, the cutoff date was taken as April 1, 2006, in terms of Uma Devi (3), then, only 10 out of 7,520 DRMs will be benefited. The fact that, if the cutoff date was taken as on August 1, 2023, then, 4,440 DRMs would be covered was noted. The stand of the authorities that, if the cutoff date of August 1, 2023 should be taken as, then, 59 percent of the total DRMs would become eligible for the regularization was placed on record.

16.

In the additional affidavit filed in such contempt proceedings, and as noted by the Hon'ble Supreme Court in the order dated August 14, 2023, in addition to the cutoff date for the regularization scheme, other aspects as to whether, the DRMs should be appointed against sanctioned post or not was also considered. Administration took the stand that, DRMs across the board will be taken into consideration in the Scheme of 2023 irrespective as to whether their initial appointment was against a sanctioned post or otherwise.

17.

Paragraph 20 of the additional affidavit filed before the Hon'ble Supreme Court in Civil Appeal No. 5014 of 2023 noted that, all the steps for regularization were subject to the concurrence and ratification of the Department of Personnel and Training.

18.

Administration, issued a notification of August 2023 which, formulated a scheme for regularization of DRMs working under the Administration called the Andaman and Nicobar Islands Casual Labourers/Daily Rated Mazdoors (DRMs) (Engagement and Regularization) Scheme, 2023.

19.

The scheme of 2023, removed the distinction between DRMs working against sanctioned post or otherwise. It also prescribed cutoff date as August 1, 2023. There are other aspects in the scheme of 2023 which need not be alluded to in details the present context. Removal of distinction between working against sanctioned post and the prescription of the cutoff date are the primary grounds of objections. 20.

By a letter dated August 30, 2023, the Administration wrote to the Ministry of Home Affairs seeking concurrence and ratification of the Scheme of 2023. In the body of such letter, the fact that, multiple high level committee meetings were convened under the Chairmanship of the learned Attorney General of India in New Delhi on August 7, 2023, August 10, 2023 and August 12, 2023 were also noted. The advice of the Learned Attorney General of India was also noted in the body of the letter dated August 30, 2023.

21.

The relevant portion of the letter dated August 13, 2023 is as follows:

"Consequently to these meetings, Shri. R. Venkataramani, Learned Attorney General of India has advised as under:-

i.

Categorical orders should be issued for extending the benefit of 1/30th of minimum pay + DA w.e.f 01.09.2017 instead of 09.05.2023 and to withdraw the clause "g" (regarding undertaking) ii.

Formulation a Scheme for Regularization of Casual Labours/DRMs in accordance with DOPT'S OM dated 07.10.2020 with the following modification:

a.

To fix the cut-off date of 10 years continuous service of DRM as "01.08.2023" instead of "10.04.2006" since only about 10 DRMs out of 7520 would be eligible if the cut-off date is considered as 10.04.2006.

b.

To remove the distinction between DRMs working against sanctioned post of otherwise as directed by the Hon'ble High Court."

22.

The letter dated August 30, 2023 noted that, the scheme was formulated consequent upon the advice given by the Learned Attorney General of India. It also noted that the additional affidavit was filed before the Hon'ble Supreme Court on August 10, 2023 wherein an undertaking was given to the Hon'ble Supreme Court and thereafter, the Civil Appeal was disposed of by the Hon'ble Supreme Court of India. 23.

By the letter dated August 30, 2023, request was made to the Ministry of Home Affairs to take up the matter with the Department of Personnel and Training, Government of India for approval of the scheme so that, compliance affidavit can be filed before the Hon'ble Supreme Court in Civil Appeal No. 5014 of 2023.

24.

By a letter dated December 13, 2023, Ministry of Home Affairs, wrote to the Administration stating that, it did not agree with the scheme

in its present format. It enumerates six reasons why the Ministry of Home Affairs did not agree with the Scheme of 2023 as its stand. 25.

Essentially, Ministry of Home Affairs, in the letter dated December 13, 2023 referred to the pronouncement in Uma Devi and M. L. Kesari's cases on the regularization of workers appointed against sanctioned posts. It also referred to the cutoff date as prescribed in Uma Devi (3) i.e. April 10, 2006. It also noticed that 121 DRMs were regularized by the Administration.

26.

The same objections as that of the Ministry of Home Affairs recorded in the letter dated December 13, 2023 are reiterated by the learned Additional Solicitor General in course of the submissions made today. 27.

A Miscellaneous Application being No. 2531 of 2023 was made in Civil Appeal No. 5014 of 2023 before the Hon'ble Supreme Court. Such miscellaneous application was disposed of on September 9, 2024 by recording that, as regards the issue of regularization, since Department of Personnel and Training, Union of India was not a party to the earlier proceedings, any substantive grievance with regards to the scheme for regularization, would be open for consideration before the appropriate forum.

28.

Uma Devi (3) issued a direction that the authorities should take steps to regularize, as a onetime measure, the services of irregularly appointed personnel, who worked for ten years or more in sanctioned

posts but not under cover of orders of Courts or Tribunals. The process was directed to be set in motion within 6 months from the date of the order Uma Devi (3) was rendered on April 10, 2006. It is no body's case that process directed by Uma Devi (3) was undertaken by the Administration or the objectors herein within the time period fixed by Uma Devi (3). The respondents cannot be allowed to take advantage if its wrong in not implementing Uma Devi (3) within the time specified therein. 29.

While taking such date of effect, as April 10, 2006 in terms of Uma Devi (3), it was found that, only 10 DRMs out of 7,520 would become eligible. This issue was considered by the high level committee chaired by the learned Attorney General of India. Several meetings were held on August 7, 2023, August 10, 2023 and August 12, 2023 as appearing from the body of the letter dated August 30, 2023. In such meetings, the learned Attorney General of India advised the Administration as noted in the paragraph 21 herein.

30.

M. L. Kesari considered Uma Devi (3). In particular, it considered the exception contained in paragraph 53 of Uma Devi (3). It is of the view that two mandatory and cumulative preconditions for regularization of irregular appointments as onetime measure is required to be made. It clarifies that, appointment of qualified person made against sanctioned posts without following process of open competition are irregular appointments and appointments made not against sanctioned posts or appointment of unqualified person are illegal appointments. Only irregular

appointees are entitled to regularization in terms of paragraph 53 of Uma Devi (3).

31.

Neither Uma Devi (3) nor M. L. Kesari can be read and construed to mean to penalize employees engaged over substantial period of time albeit on contractual or temporary basis, and made to discharge perennial nature of the job. Uma Devi (3) and M. L. Kesari sought to curtail the practice of back door entries. Uma Devi (3) emphasized the need for appointments following the constitutional principles. 32.

Mandatory direction of the Appeal Court contained in the Order dated December 19, 2022 passed in M.A. 9 of 2020 requiring the Administration to formulate a scheme for regularization of DRMs, was not challenged by the Administration. The issue is binding on the parties. 33.

The respondents herein are therefore obliged to frame a scheme for regularization. Administration did frame a scheme which is the scheme of 2023. The Department of Personnel and Training, is refusing to concur with such scheme on the ground as noted above. 34.

Neither the Administration nor the Department of Personnel and Training can be heard to contend successfully that, the scheme must be limited to persons as on April 10, 2006 and not August 1, 2023 as formulated under the scheme of 2023.

35.

Firstly, neither the Administration nor the Department of Personnel and Training formulated a scheme for regularization in terms of in Uma

Devi (3) within six months as stipulated therein. Therefore, the respondents cannot take benefit of their own wrong in contending that, the scheme should be for person in employment on April 10, 2006 and none else.

36.

Secondly, the Administration continued to engage persons on temporary basis as DRMs subsequent April 10, 2006 despite the mandate of Uma Devi (3) requiring all Article 12 instrumentalities including the respondents herein not to do so. The fact that, DRMs were appointed subsequent to April 10, 2006 is borne out from the formulated scheme of 2023 itself. Moreover, formulated scheme of 2023 prescribe a cutoff date of August 1, 2023 for persons in employment 10 years prior thereto. This fact itself establishes that, appointments were granted subsequent to April 10, 2006 contrary to Uma Devi (3).

37.

On the parity of the same reasoning as in the previous paragraph, shelter of Uma Devi (3) or M. L. Kesari is not available to the respondents for the purpose of considering whether the appointments were against a sanctioned post or otherwise. The respondents continued granting appointments of DRMs both against sanctioned posts and otherwise subsequent to Uma Devi (3). There is no explanation as to why the respondents indulged in such practice. There is no material on record to establish that, any steps were taken against the persons who indulged in such practices within the Administration in giving such appointments in violation of Uma Devi (3).

38.

Application of Uma Devi (3) cannot be limited to the hapless DRMs with no consequence befalling the Administration who violated the same. Uma Devi (3) and M. L. Kesari are not intended for a unilateral application as way of a penalty against the DRMs. With the deepest of respect, such an interpretation of Uma Devi (3) and M. L. Kesari would be limiting them to be a measure of penalty against DRMs. That would be contrary to the letter and spirit the ratio laid down therein. 39.

The scheme in question was formulated after obtaining the advice of the learned Attorney General of India. The ground of objections sought to be raised by the Department of Personnel and Training, were considered as appearing from the body of the letter dated August 30, 2023 itself. There is no material to suggest that, any scheme for regularization was ever floated for the subject 7,520 DRMs who would be benefited. Those 7,520 DRMs are therefore, entitled to one scheme of regularization in terms of the Uma Devi (3), if nothing else. 40.

The issue of implementation of the scheme of 2023, as a one-time measure, will arrive only when, the scheme is approved. As on date the scheme of 2023 is yet to be approved by the Department of Personnel and Training. The question of one time implementation of such scheme prior to the formulated Scheme of 2023 therefore does not arise. 41.

In view of the discussions above, the objections of the Department of Personnel and Training cannot be accepted. Such Department is

directed to accord approval of the Scheme of 2023 as notified in August, 2023 by the Administration within four weeks from date. 42.

WPA/547 of 2024 is disposed of without any order as to costs. ( DEBANGSU BASAK, J. )