Preeta Francis vs Mahesh Jethnand Mulchandani and Others

V.M. Sahai, J.—We have heard Mr R.J. Oza, learned Counsel for the Appellant, Mr T.R. Mishra, learned Counsel for Respondents No. 1 and 2 and Mr Dhaval Vyas, learned Counsel for Respondent No. 3. This intra court Letters Patent Appeal has been filed challenging the judgment of learned Single Judge dated 30.09.2010 passed in Special Civil Application No. 13510 of 2008 by which the learned Single Judge allowed the writ petition partly and set aside the order passed by the Respondent No. 3 Kandla Port Trust dated 19.8.2008 appointing the present Appellant on permanent basis on the post of Junior Clerk/Typist. However, the learned Single Judge has directed that the case of the Appellant was required to be considered as per seniority of Messengers by the Kandla Port Trust in accordance with law.

The learned Counsel for the Appellant has urged that the Appellant has been appointed by way of direct recruitment as clerk, therefore, the seniority list of Messengers was not relevant to his case.

It is always open to a class IV employee/messenger to appear in any written examination or interview for direct appointment and once he is appointed after following the procedure prescribed by law, he has a right to the post. From the order of the learned Single Judge, it is clear that the appointment was given to the Appellant as Messenger on compassionate ground. Thereafter, without inviting applications by advertisement in the newspapers appointment of the Appellant by way of direct recruitment has been made by the Respondents de hors the Rules without following any procedure prescribed by law. The findings recorded by the learned Single Judge in the impugned judgment from paras 8 to 12 is extracted as under:

Heard learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that initially Respondent No. 2 was appointed as a Messenger - Class IV employee on compassionate ground in the year 2001 and as per the rules and regulations, she came to be confirmed/her services were regularized as Messenger. That thereafter, without following any procedure and/or even interview, Respondent No. 2 was appointed in the year 2002 as Junior Clerk/Typist - Class III employee on purely adhoc basis for temporary period of 85/90 days with a specific condition that on the basis of the said order, she cannot claim any regular appointment. The appointment came to be extended from time to time. It appears that thereafter, number of representations were made and considering the same, Respondent No. 2 came to be reverted and the Union raised industrial dispute against the said reversion and it was sought to be contended on behalf of the Union that pursuant to the circular dated 30.07.2002, Respondent No. 2 submitted the application and her case was considered. Considering the proceedings before the Assistant Labour Commissioner (Central), it appears that the stand of Respondent No. 1 was just contrary to their stand in the present petition. It was specifically the case on behalf of Respondent No. 1 before the Assistant Labour Commissioner (Central) that the contention of the Union that circular inviting application from the employees was issued, is not correct. It was also the case on behalf of Respondent No. 1 that "on the basis of details furnished by the Deputy Conservator, Respondent No. 2 - Kumari Preeta Francis was appointed as Junior Clerk/Typist on adhoc basis on fix pay for a period of 90 days by order No. GA/PS/1403/330dated 13.09.2002 and the said appointment was made without interview and on a fixed pay and further on the condition that the same does not confer any right for regular appointment. Kumari Preeta Francis accepted the above appointment on the above terms and the said appointment was extended for further period by the department concerned". It was also the specific case on behalf of Respondent No. 1 before the Assistant Labour Commissioner (Central) that "in the case of Ms. Preeta Francis, she was regularized initially on the post of Messenger in the month of December 2001, being a compassionate appointee and at that time she was not a graduate. Since she was confirmed in the post Class IV i.e. Messenger, her status of compassionate appointee to get preference to go to higher post after obtaining graduate ceased to exist and she will come on common pool of Messenger alongwith other departmental candidates for the purpose of promotion and for this reason, she was not regularized in the post of Junior Clerk." Despite the above, some settlement took place between the Union and the Management before the Assistant Labour Commissioner (Central) collusively and thereafter, the impugned order came to be passed, the settlement cannot bind the Petitioners, as they were not party to the proceedings before the Assistant Labour Commissioner (Central). Even otherwise, on the basis of such a settlement, Respondent No. 2 cannot be appointed on the post of Junior Clerk/Typist, which otherwise she is not entitled to.

Considering the case on behalf of the Respondents, it appears that according to Respondents, it is neither the case of direct recruitment to the post of Junior Clerk/Typist nor it is a case of promotion within 10% quota. According to the Respondents, she is appointed on compassionate ground on the post of Junior Clerk/Typist. Once, Respondent No. 2 was appointed as a Messenger on compassionate ground, considering her qualification at the relevant time (at the relevant time, Respondent No. 2 was not graduate, which was required for the post of Class III) and when her services came to be regularized as Messenger, there is no question of again appointing Respondent No. 2 as Junior Clerk/Typist on compassionate ground. The aforesaid is absolutely illegal and contrary to the policy and rules & regulations of Respondent No. 1.

It appears that Respondent No. 1 has tried to change their stand from time to time. It is to be noted that after Respondent No. 2 was appointed as Messenger on compassionate ground in the year 2001, thereafter, Respondent No. 2 came to be appointed as Class III - Junior Clerk/Typist on purely adhoc and temporary basis for 85/90 days and on certain terms and conditions and one of the condition is that on the basis of such order, she will not claim any appointment on regular basis. The said order came to be accepted by her. That the said period of appointment came to be extended from time to time and thereafter all of a sudden, under the guise of some settlement between the Union and the Management before the Assistant Labour Commissioner (Central), the impugned order came to be passed. It is an admitted position that at the relevant time, when Respondent No. 2 was appointed as adhoc on Class III post, no selection procedure was followed and even interviews were also not taken. It is to be noted that it is the specific case on behalf of the Respondents that appointment of Respondent No. 2 is neither as a direct recruitment nor by way of promotion. Under the circumstances, the impugned order passed by Respondent No. 1 appointing Respondent No. 2 on permanent post as Junior Clerk/Typist in the pay scale of Rs. 4300-120-5260-130-8120, is absolutely illegal and arbitrary, which cannot be sustained and which deserves to be quashed and set aside.

Now, so far as the second prayer of the Petitioners to promote the Petitioners on the post of Junior Clerk/Typist is concerned, the same is required to be considered by Respondent No. 1, after following due procedure and as per the rules & regulations for which straightway no order can be passed.

In view of the above and for the reasons stated above, petition succeeds in part. The impugned order passed by Respondent No. 1 dated 19.08.2008 appointing Respondent No. 2 on permanent basis on the post of Junior Clerk/Typist in the pay scale of Rs. 4300-120-5260-130-8120, is hereby quashed and set aside and her case is required to be considered along with other Messengers as per the seniority list of the Messengers. So far as the prayer of the Petitioners to direct Respondent No. 1 to promote them as Junior Clerk/Typist by way of promotion is concerned, Respondent No. 1 to consider the case of the Petitioners and other Messengers for promotion to the post of Class III (within 10% quota) in accordance with law and after following due procedure and as per the seniority list at the earliest. Rule is made absolute to the aforesaid extent. No costs."

The learned Single Judge has rightly come to the conclusion that under the guise of settlement arrived at between the representative of the Union and the Management, the management could not appoint the Appellant on the post of Junior Clerk/Typist by following the procedure prescribed by law for direct recruitment. The Appellant could not be promoted as Clerk/Typist jumping the seniority list of Messengers. The Appellant was appointed in view of the settlement dated 26.6.2003 entered into between the Union and the Kandla Port Trust in the proceedings before Conciliation Officer u/s 12 (p) of the Industrial Disputes Act, 1947 illegally. The learned Single Judge had rightly quashed the appointment of the Appellant. We do not find any illegality in the impugned order passed by the learned Single Judge.

In the result, this appeal fails and is dismissed accordingly.

In view of the order passed in the Appeal, Civil Application No. 12480 of 2010 does not survive and is accordingly disposed of. Rule is discharged. Interim relief, if any, stands vacated.