Asma Bibi And ORS v. Union Of India And ORS

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE HARISH TANDON AND HON'BLE JUSTICE RAI CHATTOPADHYAY WP.CT/24/2023 Asma Bibi and others ... Petitioners

Versus

Union of India and Others ... Respondents For the petitioners :

Mr. Gopala Binnu Kumar For the respondent No. 2 to 4 :

Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi Heard on :

20th September, 2023 Judgment on :

29th September, 2023 RAI CHATTOPADHYAY, J.

1.

Writ petitioners are aggrieved with the judgment of the Central Administrative Tribunal, Kolkata, sitting at Port Blair, dated December 8, 2022 in O.A. No. 351/122/2022. So they have challenged the same in the instant writ petition. 2.

The petitioners are the daily rated skilled/unskilled workers with the respondent No.4 i.e, the Andaman & Nicobar

Collage [henceforth mentioned as 'ANCOL']. Their initial appointment to the said posts have been extended from time to time by ANCOL. Petitioner's extended service period lastly expired on December 31, 2021. For their utter dismay, they could find on January 16, 2022, an advertisement of the respondent authority, published in the well circulated daily English newspaper, inviting applications for the 19 vacant posts of skilled and unskilled 'daily rated mazdoors', for a period of 6 months.

3.

The said employment notification was the reason of the 1st round of litigation between the parties, as the present writ petitioners filed before the Central Administrative Tribunal, Kolkata, an original application being O.A.No. 351/122/2022. The writ petitioners had specifically prayed before the Tribunal for orders directing the concerned respondent to withdraw the said employment notification dated January 16, 2022, also to extend the period of contract appointment of the writ petitioners with the respondent No. 4, until regular selection process is done and also for a direction upon them to consider the petitioners for regularisation in the post of 'daily rated mazdoors' in the ANCOL.

4.

In O.A. No. 351/122/2022, the present writ petitioners were initially protected with an interim order dated January 25, 2022 of the Tribunal, by dint of which the Tribunal stayed all further proceedings with respect to the said employment notification dated January 16, 2022 and also directed the respondent No.4 to refrain from discontinuing petitioner's service, for a limited period of time. Allegedly however, the respondent college has flouted such interim order of the Tribunal inspite of due knowledge of the same. Subsequently, vide order dated March 11, 2022, the Tribunal has granted leave to the respondent college to feel up the 6 vacancies, which were not the subject matter of the said original application before the Tribunal. It is submitted that 6 daily rated employees, similarly circumstanced as the present writ petitioners were engaged by the respondent college, pursuant to such leave granted by the Tribunal.

5.

The Tribunal, in the impugned judgment dated December 8, 2022 has directed inter alia that the respondents would consider for appointment of the writ petitioners against the 13 available vacancies as per the notification dated January 16, 2022, by giving relaxation regarding their educational qualification and age and since the respondents are proposing

for engaging contractual employees against those posts, therefore the writ petitioner's case would be considered by them. 6.

The writ petitioner's prayer in this case interalia is for necessary order to set aside the part of the impugned judgment by dint of which the Tribunal has directed for consideration of the present writ petitioners against the 13 vacancies declared for the contractual posts of 'daily rated mazdoors'. The writ petitioners have also prayed for necessary direction to be issued upon the respondent college to withdraw the employment notification dated January 16, 2022 and also directing them to further extend the period of contractual appointment of the writ petitioners to the posts of 'daily rated mazdoors'. The writ petitioners have also prayed for necessary direction to be issued upon the respondent authorities to consider their candidature for regularisation to the posts of "multi-tasking staff (MTS)", under the respondent No.4/ANCOL.

7.

The writ petitioners are specifically aggrieved with the said direction made by the Tribunal in its judgment dated December 8, 2022. Mr. Gopala Binnu Kumar, who is representing the writ petitioners, has emphatically submitted that the law is well settled to the effect that in a post of permanent nature the

employer cannot be allowed to continue to engage contractual employees perpetually, that too, by replacing one set of contractual employee, by another set of that, without undertaking the process of filling up of the vacancies in the posts of permanent nature, by regular employees. It has been emphasised that the employment notification dated January 16, 2023 is only for replacing the writ petitioners who have been daily rated contractual employees with the respondent college, by engaging others on contractual basis only by replacing the writ petitioners. That, the same is impermissible in law.

It has further been highlighted that even after expiry of the period of contractual employment of the present writ petitioners with the respondent college on January 31, 2022, the said respondent continued to enjoy the service of the writ petitioners and has suddenly and abruptly, without following any norms or procedure, discontinued with the same. According to the writ petitioners such an act of the respondent is nothing but whimsical, arbitrary and illegal. To this allegedly the Tribunal has not applied its mind, in the impugned judgment as mentioned above.

petitioners who were selected through a process and rendered service uninterruptedly, from the date of their respective appointment with the respondent college. Also it has been submitted that the Tribunal has made gross error in considering in appreciating this aspect. It has further been submitted on behalf of the writ petitioner that in case the posts are to be filled up by skilled/unskilled daily rated contractual employees, there is no cogent or justifiable ground to discard service of the present writ petitioners more so, when their previous service record is unblemished and also that the authorities desire to engage only daily rated temporary/contractual workers, without embarking upon any process for appointment of permanent or regular employees. Thus, it is submitted that, the prayer of the writ petitioners in this case may be allowed, after setting aside the portion of the impugned judgment of the Tribunal dated December 18, 2022.

8.

Mr. Shatadru Chakraborty is representing the respondent authorities in this case. Mr. Shatadru Chakraborty, on instructions has not denied but accepted that the writ petitioners have been engaged with the respondent college, on daily wages basis. It has also been accepted that at one point of time the respondent authority found it proper not to continue to

engage the writ petitioners, after expiry of their contract period on December 31, 2021, they being not adequately qualified as per the required norms at the relevant point of time for their engagement as daily rated mazdoors. It has been submitted that a person was required to be class X qualified, for engagement as the daily rated mazdoor.

9.

It has further been submitted on behalf of the respondent authorities that according to the newly formulated policy the administration would not engage persons on daily wages/casual workers for work of regular nature; also that recruitment on daily wage basis would only be made to work of casual or seasonal or intermittent nature, for which no regular post can be created; that the department shall also take account of the workforce in order to redeploy regular employees for the work being done by the casual workers, to minimise and regulate the expenditure as well as proper utilisation of manpower. It has been submitted that since the present writ petitioners have not been rendering any service from January, 2022, any claim for being remunerated for the said period is wholly baseless. It has further been submitted with sufficient emphasis that the petitioner's engagement with the respondent college was for a specific term and are subject matter of extension, at the

discretion of the employer. Their service, which was last extended up to December 31, 2021, has never been further extended by the respondent college. That the petitioner, being well aware of their service conditions, cannot lawfully claim any right over the same, after the employer has exercised its discretion not to extend their service period any further. 10.

Mr Shatadru Chakraborty has however not challenged that the law is now well settled that for the job which is perennial in nature, perpetual engagement of contractual employees has been held to be not in conformity with the law. However till the process of engagement of regular employees is exhausted, he says, that the discretion lies with the employer whether or not to engage contractual employees to discharge the duties in the said posts and also whom to engage and for how long a period. According to him this discretion is unqualified and unfettered with the employer, which the respondent college has duly exercised in this case, by not continuing with the present writ petitioners after expiry of their extended period of engagement on December 31, 2021. He has tried to justify and defend his client's action of publication of employment notification as mentioned above, by saying that till the time the respondent would engage regular employees in the respective

posts, it was within the power and discretion of the respondent authorities to engage temporary employees for the posts as above. According to Mr Shatadru Chakraborty, the writ petitioners are not equipped with any cogent ground to challenge the impugned judgment of the Tribunal as mentioned above. As such, he says, the writ petition may be dismissed, being devoid of any merit.

11.

Certain facts are not disputed but admitted in this case. Firstly, that the writ petitioners have been engaged and working with the respondent No.4/ANCOL, as daily rated skilled/unskilled employees, uninterruptedly, for a considerable period of time from the date of their appointment to the said posts, ranging from a period from 2014 to 2017. Also that, the period of engagement of the writ petitioners was terminated with effect from December 31, 2021, is admitted. Since thereafter, the employer respondent college did not desire to continue with the service of the present writ petitioners and published a fresh employment notification, as mentioned above, declaring 19 vacancies, to be filled up by daily rated contractual employees. It has been a matter of record that the petitioners were engaged with the respondent college to discharge various duties and responsibilities of perennial nature. Therefore, a point has been

raised on behalf of the writ petitioners that for a perennial nature of job the employer cannot proceed to engage of fresh set of temporary workers, instead of undertaking a process for recruitment of permanent staff, while replacing the already engaged and serving contractual employees.

12.

So far as this point is concerned, the Tribunal has however considered the writ petitioner's case to their favour, holding the point in negative.

13.

The following three decisions of this court have been relied on by the writ petitioners to substantiate the point that the respondent's endeavour for fresh appointment of contractual employees, in their places, would be rendered as a nullity in the eye of law. Those are mentioned as follows:

(i) Lieutenant Governor and others versus Dr. Antony and others; judgment dated July 27, 2022 in WP.CT 11 of 2022, (ii) R. Sunder Rao versus the Union of India and others; order dated November 25, 2022 in WP.CT 21 of 2022, and (iii) Tripti Singh Saha and another versus Union of India and others; order dated August 24, 2023 in WP.CT 8of 2023.

14.

In all the three cases as mentioned above, the decision of the Court has been based on the principle that an ad hoc employee cannot be replaced by and another ad hoc employee and that he can only be replaced by another candidate who is regularly appointed, by following a regular procedure as prescribed. On each occasion, the Courts have directed the authorities to continue with the contractual appointment of the aggrieved person therein, till the date regular appointment to the posts are made. The ratio of the orders as mentioned above is squarely applicable to the facts of the present case too. It would not be out of place to mention the order of the Hon'ble Apex Court dated April 21, 2022, in Civil Appeal Nos. 3084 - 3088 of 2022 [ Manish Gupta and another versus President, Jan Bhagidari Samiti and others], on the basis of the same principle and ratio.

15.

In view of the discussion as above, the employment notification published by the respondent authorities dated January 16, 2022, had to be set aside and the Tribunal has directed appropriately to that effect, in the judgment as impugned.

16.

However, the writ petitioners are further aggrieved with the fact that in the impugned judgment, the Tribunal has directed the respondent college to continue with the service of the present writ petitioners as before, on contractual basis. This Court finds no merit or substance in the grievance of the petitioners as above. The law is now well settled particularly in view of the decision of the Hon'ble Apex Court in Secretary, State of Karnataka and others versus Umadevi (3) and others reported in (2006) 4 SCC 1, that a person who is engaged as contractual or casual worker cannot invoke the theory of legitimate expectation of being confirmed in the post, when an appointment to the post could be made only by following a proper procedure for selection.

The procedure undertaken by the present writ petitioners to be engaged with the respondent college cannot be termed as the proper procedure for selection of regular candidate in a permanent post. Therefore, writ petitioner's prayer for a direction of their regularisation against the said posts is devoid of any merit and therefore cannot be allowed. 17.

According to the discussions made as above, the writ petitioners would be eligible to continue as contractual/temporary/ad hoc workers, against the vacant posts as declared vide employment notification dated January 16,

2023, which as a matter of fact were occupied by themselves till December 31, 2021.

18.

Therefore, the respondent No.4 shall extend service of the present writ petitioners as against the said 13 vacant skilled and unskilled posts respectively, as declared vide employment notification dated January 16, 2023, with effect from January 1, 2022, till such time as it deems fit and proper and shall continue to extend the same further, till the time it undertakes and concludes the process of recruitment of regular incumbents for the said posts, keeping the terms and conditions of such employment as before. It is made clear that the writ petitioners shall not be entitled to any remuneration for the interregnum when they have not rendered any service to the said respondent. 19.

The judgment of the Tribunal dated December 8, 2022 in O.A. No. 351/122/2022, is affirmed, with the directions as above.

20.

The respondents shall comply with the directions as above, at the earliest and not later than a period of 4 weeks from the date of communication of this order.

21.

The present writ petition is allowed and disposed of accordingly.

22.

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

(Rai Chattopadhyay, J.) I Agree ( Harish Tandon, J.)