Smt. Bandana Kullu vs Union Of India & Ors.

O R D E R

“(a)

Quash and set aside the speaking order dated 20.02.2015 passed by the Deputy Director (Education), Andaman & Nicobar Administration, being illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India;

(b)

Direct the respondents to regularize the services of the applicant to the post of Craft Instructor from the date of initial appointment with all consequential benefits including arrears;

(c)

Declare that denial of regularization to the applicant while granting the same benefit to similarly situated persons is discriminatory and violative of Articles 14 and 16 of the Constitution of India.

(d)

Pass such further order/orders as this Hon’ble Tribunal may deem fit and proper.”

“ Keeping in view of the aforesaid Orders, we, therefore, direct the respondent authorities to consider the applicant’s case in the light of the orders passed earlier by this Bench within a period of four months from the date of communication of this order and take steps to appoint her against the vacant post. It is needless to mention that the case of this applicant has to be considered in terms of the Recruitment Rules. The application is, therefore, disposed of. No costs.”

“ Having heard the learned advocate for both the parties, we are of the opinion that certain documents should be examined in order to decide whether the applicant is identically placed with the other applicants who filed the aforesaid application being O.A. No. 27/AN/1997, O.A. No. 151/AN/1999, O.A. No. 107/AN/2003 and O.A. No. 57/AN/2004.

The learned Tribunal in our opinion did not furnish adequate reasons as to why the applicant herein is to be treated in a different manner. The learned advocate representing the applicant urged before this Court that the learned Tribunal failed to take note of the relevant facts wherefrom it would reveal that the applicant herein is standing on the same footing with other applicants who filed applications being O.A. No. 27/AN/1997, O.A. No. 151/AN/1999, O.A. No. 107/AN/2003 and O.A. No. 57/AN/2004.”

(a)

An order to quash/set aside/recall/rescind and cancel the advertisement dated 20.04.2015 published in the Daily Telegrams and further directing the respondents authorities that not to give any effect or further effect to the advertisement dated 20.04.2015 published in the Daily Telegrams without reserving the post of the applicant till the outcome of the original application.

(b)

A mandatory order directing the Respondent authorities to reserve one post of Craft Instructor (Music) till the outcome of the original application pending before the Ld. Central Administrative Tribunal at Port Blair;

(c)

An order directing the Respondent authorities to certify and transmit the records relating to the instant proceeding so that the conscionable justice.

(d)

Any other appropriate relief or reliefs as Your Lordships may deem fit and proper.”

“ Thus it appears that the issue regarding regularization as well as the discrimination were argued by the respective parties before the learned Tribunal. However, the Tribunal rejected the original application on the ground that the order dated February 20, 2015 has not been challenged at any point of time.

To the mind of this Court, the propriety of the order dated 20.02.2015 was assailed in the said Original Application though specific prayer for setting aside the same and for regularization was not made.

There is no quarrel to the proposition of law that unless a particular relief is prayed for, the same cannot be granted to any applicant. In the facts and circumstances of this case, this Court feels that the petitioner should not be non-suited only on technical grounds. For such reason this Court is inclined to interfere with the order impugned with liberty to the petitioner to pray for amendment of the original application.

For the reasons as aforesaid the impugned order is set aside. The original application stands restored to the file of the Central Administrative Tribunal, Kolkata Bench, Kolkata, Circuit sitting at Port Blair with liberty to the petitioner to apply for amendment of the original application.

If such an application is filed the learned Tribunal shall consider and dispose of the same after giving an opportunity of hearing to the respondent and by passing an order. Thereafter the Tribunal shall consider the original application afresh and dispose it off after giving effective opportunity of hearing to the respective parties and by passing a reasoned order.

It is, however, made clear that the petitioner shall not, by way of amendment made out a new case. Before parting, this Court observes that all the observations made herein before us are only for the purpose of supporting the ultimate conclusions arrived at by us in this order.”

“The applicant has been preferred this application seeking regularization of service in the post of Craft Instructor from the date of the initial appointment under the respondent no. 5 with consequential arrears. It appears that the applicant is seeking benefit in terms of WPCT No. 129 of 2013 decided by the Hon'ble High Court on 25.09.2013. However, no representation has been preferred by the applicant before the authorities seeking the said benefits. Hence, the OA has been filed without exhausting the available remedy.

2.

As such the OA is disposed of with the consent of both the parties with a direction upon the applicant to prefer a comprehensive representation along with all relevant documents supporting his case, before the Director of Education being respondent no. 5, within a period of one month from date of receipt of a copy of this order. Upon receipt of the said representation, the said respondent shall pass a reasoned and speaking order within a period of 3 months thereafter, on the claims

3.

It is made clear that we have not gone into the merits of this case.”

“ That as per the direction of the Ld. Tribunal, the case of the applicants in OA No. 27/ΑΝ/1997, ΟΑ 151/ΑΝ/1999, ΟΑ 107/AN/2003 was re-examined once again and it was found that the case of the instant applicant is different from the applicants of the OAs under reference t These applicants were considered regular appointment prospectively in the year 2004 through a duly constituted Departmental Selection Committee held in the year-2004 in compliance to the various Court orders prior to the amendment of the recruitment rule in 2004. It is pertinent to mention here that the applicant's case was disposed of by the Ld. Tribunal with the direction to consider regularization of her Part time service in terms of Recruitment Rules. But no such scope in contained in the prevalent Recruitment Rule 2004 /2010.

AND WHEREAS, in terms of the Recruitment Rules in-force, the applicant herein cannot draw parity with the applicants of DA 27/AN/1997, OA 151/AN1999, OA 107/AN/2003 & CA 57/AN/2004 In addition, by virtue of her part time engagement as Craft instructor (Tailoring & Embroidery), it does not confer any legal right to her to claim automatic absorption or regularization of her part time post against regular post of Craft Instructor (Tailoring & Embroidery). Such claim of the Petitioner is not invoking the provision of article 14 & 16 of constitution of India,

That previously, during the year 2005, the case of the applicant has not been considered by the department and now once again, the question of automatic regularisation of the applicant against the Recruitment Rule does not arise. There are a total of 61 part time Craft Instructors presently working in this Department, who all are on the same footing and are working on part time basis since long and as per Article 16 of Constitution of India, "There shall be equality of opportunity for all citizens in matters relating to employment, or appointment to any office under the states". As such, consideration of the instant case against regular post of Craft Instructor will create a wrong precedence and will open a flood gate for others and all should be treated equally.

AND WHEREAS, the applicant in the instant case is continuously accepting the engagement order of Part time Craft Instructor, on each occasion with the clear stipulations that by virtue of this engagement order, they will not have any claim for further engagement and continuance of service as part time Craft Instructor and by virtue of this part time engagement the candidates shall have no right / claim whatsoever in future for any regular/contract/Part time appointment under Directorate of Education, A&N Administration or any seniority in the grade. As such, she has no legal right to ask for regular appointment by virtue of her Part time engagement.

NOW THEREFORE, in view of the above narrated reasons, the case of the Petitioner cannot be considered for regularization to the Post of Regular Craft Instructor (Tailoring & Embroidery) since the Department is under compulsion to follow the norms of Statutory Recruitment Rules duly notified for the post of Craft instructor and cannot act contrary to the Statutory Rules, notified under article 309 of constitution of India.

This is being issued in obedience to the order dated 23-12-2014 passed by the Hon'ble Central Administrative Tribunal, Circuit Bench at Port Blair in OA No 351/00163/2014 (Smt. Bandana Kullu-Vs-The UOI & Ors.).

Smt. Bandana Kullu, working as Part time Craft Instructor (Tailoring & Embroidery) presently attached to Govt. SSS Mannarghat, South Andaman may be informed accordingly. This has the approval of the Competent Authority.”

“6.

It is noted that the applicant is working in the department for quite a long span of time which has not been disputed by the respondents. As per the respondents, since the applicant has secured only 8.20 marks in the Trade Test which is less than the qualifying marks of 10 out of 20, hence she was declared ‘Not Qualified’ and her case was not considered for regularization at par with 32 part time Craft Instructor (Music), whose cases were considered for appointment on regular basis despite being overaged and also not fulfilling the requisite educational qualification. The applicant was initially engaged as a part time Craft Instructor (Music) on a consolidated pay of Rs. 800/- p.m. and was entrusted duties till closure of the School for Summer Vacation, 2002. However, such engagement was extended from time to time. We find that though the applicant was initially engaged in the year 2002 and was assigned duties of teaching music to the students of Class VIth to XIIth in Govt. Schools under the Respondent No. 05 but her services were extended from time to time only upto the closure of the School during Summer Vacation. The applicant along with others was disengaged during the month of April, 2012. However, she was again reinstated during the month of December, 2012 and was posted in Government Senior Secondary School under the Directorate of Education. Though a selection process was initiated by the Directorate of Education on 20.04.2015 however the applicant failed to qualify in the said selection process. The applicant claims that since similarly circumstanced employees have been regularized, her case should also be considered for regularization. The respondents have contended that since she failed to qualify in the selection process initiated during the year 2015, she is not entitled to regular absorption.

7.

The Hon’ble Supreme Court in a recent judgment in case of Shripal & Another Vs. Nagar Nigam Ghaziabad (Civil Appeal No.8157 of 2024) dated 31.01.2025 while dealing with the issue of regularization, considered the earlier judgments in Vinod Kumar and Others Etc. Vs. Union of India & Others [(2024)1 SCR 1230], Jaggo Vs. Union of India & Others (Arising out of SLP(C) No.5580 of 2024 etc.) dated 20th December, 2024 and Secretary, State of Karnataka Vs. Uma Devi [(2006)4 SCC 1] and opined that if an employee works continuously without any break in a temporary capacity for a long time, it means that his job is perennial in nature and such employee cannot be denied regularization under the shield of the judgment in Uma Devi(supra) which distinguishes the appointments between regular and irregular. As per the judgment of Shripal (supra), irregular appointees are eligible for regularization if they fulfill certain conditions.

8.

In this respect, it would be pertinent to reproduce the relevant portion of the judgment of Hon’ble Supreme Court in case of Jaggo Vs. Union of India & Others (Arising out of SLP(C) No.5580 of 2024 etc.) dated 20th December, 2024, which reads as under:-

“22.

The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers' rights and job security. In the private sector, the rise of the gig economy has led to an increase in precarious employment arrangements, often characterized by lack of benefits, job security, and fair treatment. Such practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and justice, bear an even greater responsibility to avoid such exploitative employment practices. When public sector entities engage in misuse of temporary contracts, it not only mirrors the detrimental trends observed in the gig economy but also sets a concerning precedent that can erode public trust in governmental operations.

25.

It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade long-term obligations owed to employees. These practices manifest in several ways:

•

Misuse of "Temporary" Labels: Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labeled as "temporary" or "contractual, "even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks.

•

Arbitrary Termination: Temporary dismissed employees are frequently without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service.

•

Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant.

•

Using Outsourcing as a Shield: Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment.

•

Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, or unforeseen circumstances.”

In the instant case, admittedly, the applicant are engaged as Part Time Craft Instructor for a period of more than 24 years and the respondents had allowed them to continue in service for a long period, wherefrom it is established that the applicant’s nature of work was perennial. Moreover, the respondents have continued to pay them the emoluments as notified by the Andaman and Nicobar Administration from time to time.

9.

During course of hearing, Ld. Counsel for the applicant has drawn our attention to an Order dated 03.01.2025 delivered by this Tribunal wherein while dealing with a similar issue, this Tribunal after taking into account the dictum laid down by the Hon’ble Apex Court in the case of Jaggo (supra) has inter alia held as under:-

“ xxxxxx

5.6

In our opinion, therefore, the applicant is entitled to regularization of his services from the date he was granted temporary status. Respondents are directed to regularize the services of the applicant from the date he was granted temporary status.

It is noted that the applicant has not rendered service for a considerable period even after this Tribunal’s order presumably because the order was under challenge before the Hon’ble High Court. It is, therefore, made clear that the consequential benefits of his regularization will be limited to seniority, pensionary benefits and future promotions only.

Respondents are further directed to complete the process of regularization and grant consequential benefits within a period of 120 days from the date a certified copy of this order is received in their office.

6.

OA stands disposed of. No order as to costs.”

10.

In this context, it may also be mentioned that if the applicant performance was not satisfactory as claimed by the respondents, her services could have been terminated earlier however after allowing her to continue for a period of about 24 years, now they cannot backtrack and question her competency for the purpose of regularisation.

11.

In the case of Shri Kangkan Mondal, he was also appointed to the post of Craft Instructor (Music) on Part Time Craft Instructor (Music) during the month of March, 2002 and his engagement was extended from time to time. Initially, he did not possess the education qualification required for the post, however, he only became eligible for the post during the year 2020 and at time he became grossly overaged. Hence, his case could not be considered.

In view of the aforesaid facts and circumstances and also in view of the dictum of the Hon’ble Supreme Court as quoted supra, we find that denial of regularization of services of the applicant after a long tenure of service under the respondents is not justified. Accordingly, the respondents are directed to initiate a fair and transparent process for regularization of the applicants with due consideration of the fact that she has been performing perennial nature of duties as has been done in the case of other similarly circumstanced employees. The respondents are also directed to grant age relaxation to Shri Kangkan Mondal since he fulfils the educational qualification and have continued to serve the administration for such a long period of time.

The entire exercise be completed by the respondents within a period of 6 months from the date of receipt of a copy of this order.

12.

With the above observations and directions, both the O.A.s stand disposed of. No order as to costs.”