Shri P.Kathiresan v. Union Of India And ORS.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** WP.CT/61/2023 Shri P. Kathiresan Vs.

Union of India and others Mr. Gopala Binnu Kumar Ms. Vinita Devi ... for the petitioners Mr,Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondents November 23, 2023 [SR] Item No.3 1.

The writ petition is directed against an order passed by the Central Administrative Tribunal on 27th February, 2023 in OA/350/133/2016(AN) in which the writ petitioner has prayed for setting aside the impugned order No.2381 dated 21.07.2016 passed by the respondent no.5 whereby the said authorities rejected the claim of the applicant for consideration of the case for regularisation on the ground that the applicant did not have requisite qualification of tenth standard pass.

2.

Initially the original application was allowed on 3rd June, by which the Tribunal directed the regularisation of the petitioner with effect from 25th September, 1996 in the Group 'D' post which has been redesignated as Multi Tasking Staff after implementation of VIth Central Pay Commission within in one month from the date of receipt of the said order. This order was under challenge by the administration in WPCT/51/2020.

3.

The petitioner was engaged as Daily Rated Madoor (DRM) since September, 1996 and his service was extended upto March, 1999 and thereafter he was engaged on part time basis from the month of April,1999 till the monthof March, 2003. Subsequently he was engaged on contract basis for the post of Chowkidar from March 2003 till the month of February, 2012.

4.

Since the service of the petitioner was discontinued with effect from 1st March, 2012, however, due to implementation of the Rights to Education Act, 2009, which require compulsory school education at the primary level, the Administration decided to create the part time post of pre-primary teacher in absence of sufficient number of part time teacher available in the UT upon the surrender of other categories of part time posts.

5.

On the recommendation of the 6th CPC, the Administration has also declared all the Group 'C' post in common category with new designation as Multi Tasking Staff and framed the recruitment rules fixing educational qualification and the mode of recruitment. The entire group 'D' post of the UTs was upgraded to Group 'C' and merged with Multi Tasking Staff.

6.

The minimum educational qualification of such Multi Tasking Staff would be Class Xth passed and the writ petitioner admittedly having certificate of Class 9th pass it was in view thereof, the Administration has declined to

regularize his service as he did not possess the requisite qualification. This order was challenged by the writ petitioner on the basis that when he was recruited he had sufficient qualification and when his service was required to be considered for regularisation, the new set of rules cannot be introduced, with regard to the educational qualification in order to deprive him of the benefit of regularisation. 7.

The Tribunal agreed to the submission of the writ petitioner, set aside the order No.2381 dated 21st July, 2016 and directed regularisation of the writ petitioner with effect from 25.09.1996 in the Group 'D' post re-designated as Multi Tasking Staff on implementation of 6th Central Pay Commission in terms of the decision rendered in Secretary, State of Karnataka and others vs. Uma Devi reported in (2006) 4 SCC 1.

8.

The contention of the Administration appears that in the earlier proceeding as well as before the Coordinate Bench was that the authorities concerned considered the past incidence of the service of the petitioner, which would be reflected from the order of the 21st July , 2016 and having regard to his nature of employment namely that he was initially appointed as Daily Rated Mazdoor or on contractual basis and subsequently he was shifted to a Part Time employment in his fixed renumeration, the ratio of Uma Devi cannot be extended in favour fo the present writ petitioner.

9.

While disposing of the writ petition by the Coordinate Bench, the following observation was made.

"The recruitment rules reserved the power to relax by the Administrator upon recording the reasons in writing but the Tribunal has not considered whether such power of relaxation can also be expanded to the educational qualifications. There is a complete silence on this regard. In case of Marripati Nagaraja & others (supra) the Apex Court has said that though the State is within its power to make the rule operative from a retrospective effect but the same must be specifically indicated in such rule. In other words it is held that the rule promulgated subsequently shall always be intended to operate prospectively unless the State intended to operate retrospectively. We fail to find out the applicability of the aforesaid judgment in the instant case for the simple reason that the case of regularisation has to be considered on the basis of the extant rule when the right to regularization accrued.

It is beyond cavil of doubt that the mandate in Uma Devi (supra) is to be construed in the perspective of the requisite conditions recorded therein and the Court/Tribunal should be slow and circumspect in directing the regularization of the order. There is no finding recorded in the impugned order whether the nomenclature of the engagement, in effect, tentamounts to continuance of the engagement on casual basis or as daily rated mazdoor before venturing to pass an order for regularization.

In our view, the Tribunal has not considered the case in the perspective as indicated above and it

would not be proper for us to decide the issue as a Court of first instance."

10.

The Tribunal was directed to reconsider the application in the light of the observation made in the said order.

11.

Learned counsel for the writ petitioner has submitted that in respect of some autonomous bodies in the islands , similar relief was extended to persons similarly circumstanced in MAT/14/2023 (The Port Blair Municipal Council and another vs. Shri A. Subramaniam and others] decided on 25th August, 2023 and the Special Leave Petition was rejected by the Hon'ble Supreme Court on 6th November, 2023 in SLP (C) No. 23507 of 2023.

12.

It is submitted that having regard to the materials available with the learned Tribunal, the direction for fresh consideration by the respondent authorities with regard to the nomenclature or deciding his claim for regularisation in the light of the Uma Devi (supra) as well as the observation of the Coordinate Bench in WP.CT/51/2020 was unnecessary.

13.

Mr. Shatadru Chakraborty, learned counsel appearing on behalf of the Administration has submitted that in view of the recent development with regard to regularisation of DRM/casual employees, the writ petitioner may apply for his regularisation under the scheme to be framed by the Administration on the basis of the assurance and

undertaking given before the Hon'ble Supreme Court in Civil Appeal No.5014 of 2023 (Admiral D K Johi, the Hon'ble Lieutenant Governor, Andaman and Nicobar Islands and another vs. Andaman Sarvajanik Nirman Vibhag Mazdoor Sangh and another) dated 14th August, 2023, it appears from the order of the Hon'ble Supreme Court that the Administration, in the affidavit recorded in para 10 of the said order, appears to have accepted that upon fulfillment of necessary minimum qualifications prescribed in the recruitment rules prevalent at the time of initial appointment would continue as part of the present scheme of regularisation and having regard to the such stand, the minimum qualification of criteria of the petitioner is fulfilled.

14.

Although we observe that it was incumbent on the Tribunal to decide with regard to expanding the scope of recruitment rules in order to include the higher qualification for the purpose of consideration for regularsiation was not addressed clearly by the learned Tribunal, but the Tribunal, however, having regard to the affidavit filed before the Hon'ble Supreme Court and the stand taken by the Administration, the petitioner is found to be eligible for the purpose of consideration under the scheme to be framed by the Administration for regularisation.

15.

The issue raised by the Tribunal to the effect that it is a specific case of the writ petitioner that he rendered continuous service as Chowkidar but not on a part time

basis. The Tribunal in absence of materials on records could not have arrived at a definite finding as to whether the applicant continued on contract/casual basis for more than ten years on sanctioned post in the respondent department or not and whether he rendered service on contractual basis regularly and not on part time basis.

16.

In our view thereof the Tribunal instead of remanding the matter to the authorities concerned ought to have called for all the records to be produced by the Administration in order to ascertain the factual aspect and decided the said issue. Prima facie it appears that the writ petitioner was engaged by the department concerned in the year 1996 and service was never terminated.

17.

On such consideration, we direct the Tribunal to decide the said issue with regard to his nature of employment by directing the respondent to produce all relevant service record of the writ petitioner within a period of six weeks from the date of communication of this order. 18.

The parties shall produce all relevant record in order to assist the Tribunal in deciding the said issue. 19.

The writ petition is disposed of in terms of the above direction, however, there shall be not order as to costs. 20.

Urgent certified phtotostat copy of this order, if applied for, be supplied to the parties upon compliance of usual formalities.

( Soumen Sen, J. ) ( Siddhartha Roy Chowdhury, J. )