Smt. Niva Kundu vs The Union Of India & Ors.

PER: RAJINDER SINGH DOGRA, MEMBER (J):

By this O.A., applicant makes a prayer for setting aside the impugned O.M. dated 12.09.2023, whereby her claim for regularization in the post of Upper Division Clerk (UDC) has not acceded to by the respondent authorities. She therefore, seeks retrospective regularization from the date she completed a decade of ad-hoc service.

Sri M. Chanda, learned counsel for the applicant submits that applicant joined on 25.08.1998 on ad hoc basis initially for a period of six months in the vacant post of UDC at National Skill Training Institute (Women), Dakopgre, Tura, Meghalaya. The respondent authorities vide order dated 17.04.2002, had terminated the ad hoc service of the applicant as UDC from the forenoon of 18.04.2002 with further direction to hand over the charge to Sri Pintu Dey, LDC. Being aggrieved, applicant had approached before the Hon’ble Meghalaya High Court by filing WP(C) No. 98(SH)/2002 wherein the applicant was protected vide order dated 24.04.2002. In terms of the said order, applicant joined her duties on 26.04.2002. Said Writ Petition was withdrawn vide order dated 17.10.2006. Thereafter, applicant approached this Tribunal by filing O.A. No. 253/2006 against the aforesaid termination order dated 17.04.2002 wherein, this Tribunal vide order dated 24.10.2006 protected the applicant, and the said O.A. was dismissed vide order dated 29.01.2008 stating that there is no provision in the Recruitment Rules for direct recruitment for the post of UDC and that her initial appointment is irregular and her continuance has also no legal basis. Against the said order dated 29.01.2008, applicant had approached the Hon’ble High Court of Meghalaya by filing WP(C) No. 101/2013. The Hon’ble High Court by judgment and order dated 14.03.2014 allowed the said Writ Petition by setting aside the order dated 29.01.2008 of this Tribunal and the termination order dated 17.04.2002 so as to enable the respondents to take fresh decision or to issue afresh order under the terms and conditions mentioned in the appointment order dated 25.08. 1988. However, relying on the recruitment rules, at para 9 of the said judgment and order dated 14.03.2014, it has been mentioned that the post of UDC is cent per cent promotional post and any appointment by direct recruitment is an illegal appointment. That against the judgment and order dated 14.03.2014 of the Hon’ble High Court of Meghalaya, the respondents approached the Hon’ble Supreme Court by filing SLP (C) Diary No. 5119/2020 along with IA No. 30997/2020 praying for condonation of delay of 2060 days in filing the petition. The Hon’ble Supreme Court by order dated 29.04.2022 dismissed the SLP on the ground of delay. Thereafter, in terms of the judgment and order dated 14.03.2014 of the Hon’ble High Court of Meghalaya, the applicant was allowed to join her service as UDC (ad hoe) w.e.f 15.05.2013 by issuing order dated 27.04.2017. She was also directed to submit a declaration not to take any legal recourse in any court of law for claiming any other benefits of the previous service rendered w.e.f. 25.08.1988 to 30.04.2017. It has been further mentioned that she was appointed purely on adhoc basis initially for a period of six months from the date of joining the post or till the post is filled up on regular basis whichever is earlier.

That the respondents had again taken a decision and terminated the service of the applicant in 2017. Being aggrieved, the applicant again approached the Hon’ble Meghalaya High Court by filing WP(C) 109/2017. The Hon’ble High Court by order dated 16.05.2017 issued notice upon the respondents and in the meantime, directed that the respondents to let the applicant to remain in her service. During the proceeding, the Learned CGC appearing on the behalf of the respondents admitted that the applicant was serving in the Regional Vocational Training Institute for Women, Dakopre, Tura for last 32 years. The Hon’ble Court ultimately by judgment and order dated 12.02.2019 allowed the Writ Petition with direction not to disturb the applicant and not to stall her service benefits in any manner. A DPC meeting was scheduled on 15.12.2022 for promotion to the post of Accountant, which was lying vacant since 01.01.2022 at unit secretariat NSTI (W), Kolkata. From the minutes of the meeting dated 15.12.2022, it is clearly evident that the applicant was within the zone of consideration as per Seniority. The committee after scrutinizing all relevant documents of court decision and departmental file/noting had recommended that NSTI (W) to form a committee and settle the case as per order/observation of the Hon’ble High Cotut in WP(C) 101/2013 and WP(C) 109/2017. It was further suggested to adhere to the court verdict and to conduct review DPC to provide natural justice to the applicant as per court order. Pursuant to the recommendation for regularization of the service of the applicant in the DPC meeting dated 15.12.2022, the respondent no. 5 issued letter dated 05.01.2023 for holding a DPC on 16.01.2023 regarding regularization of service of the applicant in the light of court verdict in WP(C) 101/2013 and WP(C 109/2017 and the respondent No. 3 vide OM dated 12.09.2023 communicated that the competent authority has rejected the proposal of regularization of the service of the applicant as recommended in the meeting held under the chairmanship of the Regional Director, Assam on 16.01.2023.

As per the applicant, he had already worked for 10 years as on 1998 after her appointment against a duly sanctioned vacant post pursuant to an advertisement and the selection process without any intervention of Court. It is only when the applicant was terminated by order dated 17.04.2002, the Hon’ble Meghalaya High Court by order dated 14.03.2014 had set aside the said termination order dated 17.04.2002. It is stated that the applicant has been continued in the respondent department for over 34 years but has not yet been regularized. It is stated that upon certain defect in his seniority in the department, the respondent no. 5 issued letter dated 17.03.2022 certifying that the applicant after her appointment on 25.08.1988 at NSTI(W), Tura has completed more than 33 years of service as UDC Adhoc at NSTI(W)- Tura as on 17.03.2022. It is stated that the applicant is duly eligible and entitled to be regularized in terms of the decision of the Hon’ble Supreme Court in Secretary, State Of Karnataka vs Umadevi And Others [(2006) 4 SCC 1]. Hence, denial of the said benefit is arbitrary and illegal being violative of Article 14 and 21 of the Constitution of India and the aforesaid decision of the Hon’ble Supreme Court.

Applicant has also pleaded that similarly situated employees as the applicant who were initially appointed as ad hoc in the NSTI(W), Dakopgre were later regularized against the said post viz. (i) Sri Dewan Ch. Marak was initially appointed on ad hoc basis as Peon and was later regularized as MTS in 1990, (ii) Sri Kriterson M. Sangma was initially appointed on ad hoc basis as Safaiwala and was later regularized as MTS, (iii) Mrs. Labanya Devi was initially appointed on ad hoc basis as Vocational Instructor and was later regularized in the said post in 1990.

Respondents have filed their written statement and states that the respondents have rejected the proposal for regularization of the service of the applicant recommended in the minutes of meeting dated 16.01.2023 vide the OM No: A-38/2023-O/o DEPT. SECY (Estt.1) (60989) dated 12.09.2023 with reference to the decision of the Hon’ble High Court of Meghalaya vide WP(C) 109/2017 dated 12.02.2019, whereby the Hon’ble Court has directed that the service of Ms. Niva Kundu may not be disturbed and she may be allowed to render her service on ad-hoc basis. As per Hon’ble High Court order dated 14.03.2014, the applicant was given fresh appointment order on 27.04.2017. As per the terms and conditions of appointment order dated 27.04.2017, she was advised to submit declaration" not to take any legal recourse in any court of law for claiming any other benefits of the previous service rendered from 25.08.1988 to 30.04.2017. The applicant had accepted the offer of appointment and hence she has no claim for the benefits of the ad hoc services rendered during the period of 25.08.1988 to 30.04.2017. The claim of the petitioner for the benefits of decision of Hon’ble Supreme Court in Secretary, State of Karnataka vs Uma Devi and Others {(2006)4SCC1}, State of Karnataka & Ors vs M.L. Kesari [(2010)9SCC 247] is not valid as she has not completed requisite 10 years of uninterrupted service w.e.f 30.04.2017 in the Hon’ble Supreme court order.

Respondents have further states that the advertisement for filling of the post of UDC was made through employment exchange purely on ad-hoc basis since the said post was not under direct recruitment quota and the post of UDC is a promotional post, therefore, the said post was filled up on ad-hoc basic till the regular promotee becomes available for the said post. The appointment was purely on ad hoc basis initially for a period of six months from the date of her joining the post or till the post is filled up on regular basis whichever is earlier. Therefore, the applicant had no claim for the post after completion of 6 months period. Her continuation as ad hoc UDC was as per court directions.

We have heard Sri M. Chanda, learned counsel for the applicant and Sri S.K. Ghosh, learned Addl. CGSC for the respondents and scrutinized the entire conspectus of the case.

From a thorough review of the material facts on record, it is an admitted position that the relevant Recruitment Rules provide no direct provision to appoint an individual to the post of UDC. The post of UDC is structurally a cent per cent promotional post, and direct recruitment into this cadre is impermissible. Under standard operational guidelines, the post of UDC is filled on an ad-hoc basis strictly as an interim measure until a regular promotee becomes available. In the present case, the applicant's appointment was irregular from its inception. She was inducted as a UDC on an ad-hoc basis via an order dated 25.08.1988 and continued in that status without regularization until her retirement. Furthermore, the Principal who issued the initial advertisement and subsequent appointment order lacked the competence to do so. The post of UDC is a State-level post that must be advertised and filled at the Directorate or Government level. By issuing the advertisement and appointing the applicant without following the prescribed statutory procedures, the appointing authority committed a fundamental procedural error. Consequently, the initial appointment dated 25.08.1988 must be characterized as completely irregular.

The boundaries of this dispute have been clearly delineated by the Hon’ble High Court of Meghalaya at Shillong in its judgment and order dated 14.03.2014 passed in WP (C) No. 101/2013. The Hon’ble High Court observed as follows:

(emphasis supplied)

The High Court's ruling makes it clear that because the UDC post is a 100% promotional post, it can be filled by regular promotion, and in that event, the applicant's claim to the post would hold no merit. It is also settled law that administrative or executive errors can be corrected later through proper legal procedures. In light of these facts, this Tribunal finds no illegality or infirmity in the impugned decision of the respondents dated 12.09.2023. The respondents' decision aligns with both the statutory Recruitment Rules and the explicit directions of the Hon’ble High Court of Meghalaya (supra).

However, this Tribunal cannot overlook the exceptional length of service rendered by the applicant. As certified by the Principal of the National Skill Training Institute (Women) vide letter dated 17.03.2022, the applicant worked and completed more than 33 years of continuous service as an ad-hoc UDC. While her initial appointment was irregular, rendering service for over three decades without any adverse entries presents a unique equitable consideration. Therefore, while we decline to quash the impugned order or mandate automatic regularization, a directive for administrative review is warranted. Hence, prayer of the applicant to set aside and quash the O.M. dated 12.09.2023 and grant automatic regularization are denied. However, the respondent authorities are hereby directed to examine whether there are any provisions for relaxation of rules regarding qualifications, recruitment methods, or tenure length within their statutory framework. If an enabling provision or power of relaxation exists under the rules, the respondents shall consider the case of the applicant for regularization on an exceptional basis, taking into account her certified 33 years of service. This exercise shall be completed, and the final decision be communicated to the applicant via a reasoned order, within a period of three months from the date of receipt of a certified copy of this order.

With the above observations and directions, O.A. stands disposed of. Pending M.A., if any, also stands disposed of. There shall be no order as to costs.