Swapan Paul vs The State of Tripura and Others

S.C. Das, J.—1. The petitioner, a diploma holder in Medicine & Surgery (Homeopathy) was engaged by the respondents as "Honorary Homoeo Physician" (Annexure-1 & 2 to the writ petition) w.e.f. 24.09.1987, at a monthly honorarium of Rs. 500/-, on "no work no honorarium basis". Initially he was appointed for one year from the date of joining with the stipulation that the engagement may be extended or reduced by the competent authority at its discretion.

It is an admitted position that such engagement of the petitioner was extended time to time and the honorarium was also increased and some other benefits were also given under the scheme of the State Government dated 15.12.2002 (Annexure-9 to the writ petition) but in spite of representation made by the petitioner and in spite of the fact that the petitioner had all requisite qualifications, he was not regularized as a Homoeo Physician and he retired on 28.02.2011. Admittedly, the writ petition is filed after his retirement.

By filing this writ petition the petitioner prayed for directing the respondents to regularize his service as a Homoeo Physician pursuant to Finance Department Notifications dated 08.09.2006 and 07.11.2007 (Annexure-12 and Annexure-13 to the writ petition) respectively and further as per item No. 8 of the Scheme formulated by the State Government (Annexure-9 to the writ petition). It is also prayed by the petitioner that since respondent No. 4 was regularly appointed as a Homoeo Physician and since there was vacant post he was entitled to regularize in the post.

Heard learned counsel, Mr. Khohinoor N. Bhattacharjee for the petitioner and learned Addl. G.A., Ms. A.S. Lodh for the State respondents.

It is contended by the petitioner that the petitioner was eligible for regular appointment in the post of Homoeo Physician since there was vacant post but the respondents did not regularly appoint the petitioner and other eligible Homoeo Physicians and therefore Civil Rule No. 34 of 1996 was filed before Agartala Bench of the Gauhati High Court which was disposed of by order dated 19.02.1996 by a Single Bench of the said High Court quoting the submission of the Advocate General of the State. The relevant part of the order (Annexure-3 to the writ petition) reads as follows:

"Mr. A. Chakraborty, learned Advocate General has submitted that the Government have already taken decision that no one shall be appointed on ad hoc basis. It is stated that the appointment of medical officer (Homoeopathic) will be made as per the method of selection i.e. through Tripura Public Service Commission.

In view of this submission there is no necessity of proceeding with the case any further.

The petition is accordingly disposed of."

Thereafter, the State Government after relaxation of age of the petitioner allowed him to appear before Tripura Public Service Commission (TPSC for short) for appointment to the post of Homoeo Physician (Medical Officer, Homoeo) but the petitioner could not clear himself. However, he had a legitimate expectation that he will be regularized in the near future since his engagement was extended from time to time with the stipulation to a particular date or till the regularization of the petitioner and therefore he was expecting that he may be regularized in near future and therefore continued in the job. It is also contended by the petitioner that some 28 Pharmacists were also engaged on honorarium basis and they were also regularized with retrospective effect. All those facts generated an expectation of the petitioner that he will be regularized in future.

The respondents contended that the State Government made a conscious decision that no one should be appointed on ad-hoc basis and after the Court''s order in Civil Rule No. 34 of 1996 an attempt was made for appointment through selection by TPSC and the petitioner was also allowed to appear in TPSC selection process after relaxation of his age. There were 15 (fifteen) posts of Homoeo Medical Officer and out of the Honorary Homoeo Physicians 9 (nine) persons were selected by TPSC and they were regularly appointed. Since the petitioner could not clear his candidature he could not be appointed but the State respondents allowed him to continue in the same engagement as Honorary Homoeo Physician but remuneration and other benefits as per the scheme were given to him. The post of Pharmacist was Group C post whereas the post of Medical Officer, Homoeo was Group A and Group B gazetted officers and so the petitioner cannot set the example of Pharmacist for regularization to the post of Homoeo Physician.

Learned counsel, Mr. Bhattacharjee submitted that there was positive assertion on the part of the respondents as a result of which the petitioner had all along a legitimate expectation that he will be regularized in the service. He served as a Homoeo Physician for about 23 years like that of other regularly appointed Homoeo Physicians and discharged the same nature of duties whereas he was neither given the pay scale nor any other retiral benefits.

Learned Addl. G.A., Ms. Lodh submitted that the petitioner could not clear his candidature for regularization as a Medical Officer (Homoeo) and he cannot blame the State respondents while he could not succeed in the TPSC selection process. He cannot have any legitimate expectation since the State Government had taken sympathetic attitude and therefore did not discontinue his job as an Honorary Homoeo Physician and he cannot have any legitimate expectation.

There is nothing in the writ petition that the petitioner was appointed as an Honorary Homoeo Physician under any service rules. The State Government with a view to meet certain exigencies engaged Honorary Homoeo Physicians under specific terms and conditions which did not confer any right on the petitioner and other similarly situated other people and the writ petition filed before the Gauhati High Court, Agartala Bench was disposed of quoting the submission of the learned Advocate General. It is clear from the pleadings of the petitioner and the respondents that the petitioner was already over-aged but he was given age relaxation to appear in the selection process conducted by TPSC but he could not clear his candidature. Because of the fact that his engagement was extended time to time with the stipulation that the extension was made till a particular date or till the regularization of the petitioner, that cannot generate a legitimate expectation. The engagement of pharmacists and regularization of their service cannot be a ground for regularizing the petitioner or to put him at par with the pharmacist.

The Supreme Court in the case of Secretary, State of Karnataka & Ors. vs. Uma Devi & Ors. reported in , (2006) 4 SCC 1 has categorically held that a person cannot invoke the theory of legitimate expectation for being confirmed in the post without following proper procedure for selection and in particular cases without consultation with the Public Service Commission. We may gainfully refer para 47 of the judgment which reads as follows:

"47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post."

The petitioner was well aware of the nature of his engagement. He was given the opportunity to clear his candidature for appointment as a Medical Officer, Homoeo but he could not come out successfully in the selection process made by TPSC. Under such admitted position the petitioner cannot have legitimate expectation for his regularization in the post of Medical officer, Homoeo simply because he was serving as an Honorary Homoeo Physician for a continuous long period of time.

It is also contended by the petitioner that respondent No. 4 was appointed in the year 2001 as a Medical Officer, Homoeo but though the petitioner was eligible for appointment as Medical Officer (Homoeo) the State respondents did not appoint him regularly and therefore he was discriminated. Mr. Bhattacharjee, learned counsel submitted that the petitioner is entitled to get regularized as a Medical Officer, Homoeo from the date the respondent No. 4 was regularly appointed and entitled to get all service benefits since the petitioner was discriminated by the respondents.

On the other hand, learned Addl. G.A., Ms. Lodh submitted that respondent No. 4 was appointed in the post of Homoeo Physician after the selection process pursuant to the Government of India''s instructions to fill up vacancies meant for Schedule Castes and Scheduled Tribes. Learned Addl. G.A. referred Annexure-R1 and Annexure-R2, i.e. letter dated 20.07.2000 and 03.10.2000 written by the Deputy Secretary to the Government of India in the Ministry of Personnel, Public Grievance & Pensions (Department of Personnel & Training). She has submitted that the appointment of respondent No. 4, Rakhi Debbarma was through an interview process to fill up reserved vacancies and that cannot be an instance for regularizing the case of the petitioner.

As I find, the petitioner and respondent No. 4 are not similarly situated, respondent No. 4 was appointed on regular basis and according to the State respondents after a selection process she was engaged to fill up the vacancies of quotas meant for Scheduled Tribes pursuant to the direction of the Government of India. The petitioner since was serving as an Honorary Homoeo Physician, was only entitled to be regularized after a due selection process through TPSC as was decided by the State respondents. So the petitioner cannot claim his regular appointment, once he was not selected by TPSC by citing the instance of respondent No. 4.

It is the further case of the petitioner that he filed Civil Rule No. 222 of 1996 seeking direction for his absorption/regularization in the service and for some other benefits. That writ petition filed by the petitioner along with some other similar writ petitions were disposed of by a Single Judge of the Gauhati High Court, in the Agartala Bench. Only paragraph 17 of that judgment has been annexed by the petitioner as Annexure-8. It is quite surprising that the petitioner did not annex the entire judgment for examination by this Court. Paragraph 17 reads as follows:

"17. In view of the decision of this Court in W.P.(c) No. 198 of 1998 and in view of the above, I hold that "no mandamus or direction can be issued for regularization of the services of the petitioners. However, in view of the peculiar facts of these cases and the humanitarian problem involved and the hard reality that the petitioners are continued on the basis of a fixed honorarium/remuneration without any other service or retiral benefits for last 12/13 years, it is expected and hoped that the State Govt. of Tripura may come forward to frame a suitable scheme so that the petitioners may get necessary relief in the matter. So far as age bar is concerned, Govt. has power to relax."

It is clear from the above that the writ petition filed by the petitioner seeking absorption/regularization, etc. was not allowed but the State Government formulated the scheme, a copy of which is annexed as Annexure-9 and under that scheme certain benefits were given to the Honorary Homoeo Physicians. Para 8 of the said scheme reads as follows:

"8. APPOINTMENT TO REGULAR POST

10% of the vacancies in regular post of Medical Officer (Homoeo) may be filled-up from amongst the existing honorary (Homoeo) Physician with at least 5 (five) years continuous satisfactory service as Honorary Homoeo Physician."

It is contended by the petitioner that in view of the above scheme the State respondents would engage the petitioner since there were adequate vacancy for regularization of the services of the petitioner.

It is submitted by learned Addl. G.A. that there is nothing in the scheme that 10 percent vacancies should be filled up without any selection process. There were similarly situated other Homoeo Physicians also and no one regularized as a Medical Officer, Homoeo without any selection process through TPSC.

The Supreme Court in the case of Uma Devi (supra) has considered the issues of absorption, regularization or continuance of temporary, contractual, casual daily wage or ad-hoc employees appointed and/or recruited or continued for lying in public employment. The apex Court laid down the law that such public employment dehors the Constitutional scheme and the rules cannot be a ground for regularization in the service. We may gainfully refer here paras 43 and 45 of the judgment in Uma Devi (supra) which answer all the points raised by the petitioner.

"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.

...............................................................................................

While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain-not at arm''s length-since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution."

In view of the law laid down by the apex Court clearly in the case of Uma Devi (supra) the petitioner simply because he was serving as an Honorary Homoeo Physician cannot claim regularization in the post of Medical Officer, Homoeo. The petitioner further referred the Memo. dated 08.09.2006 and Memo. dated 07.11.2007 (Annexure-12 and Annexure-13) which shows that the employees engaged by different departments against fixed pay posts created by keeping abeyance regular scale posts, from the date as notified by the department was regularized. The petitioner was engaged as Honorary Homoeo Physician to meet some exigencies by the State Government. There is nothing to show that by keeping in abeyance regular scale post the petitioner was engaged as an Honorary Homoeo Physician. So those office Memorandum of the State Government cannot, in any way help the case of the petitioner.

It is an admitted position that the post of Medical Officer, Homoeo is a post of gazetted officer and it is expected that the post should be filled up only after a due selection process as was declared by the State Government which was reflected in the order of the High Court and since the petitioner could not clear himself in the selection process undertaken by TPSC, the petitioner cannot claim absorption or regularization in the post of Medical Officer, Homoeo.

In view of the discussions made above, I find no merit in the writ petition and hence the writ petition stands dismissed. Respective parties shall bear their costs.