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Judgment
Sabyasachi Bhattacharyya, J.
The brief facts of the case are as follows:
The writ petitioner was appointed as Engineer and Ship Surveyor on a temporary basis with effect from February 16, 1999 till the date on which the UPSC-selected candidate would join duty. He continued in such service without any break till December 31, 2002. Thereafter, there were artificial breaks, mostly of one/two days, totalling 21 days in number, till the petitioner attained the age of superannuation on August 13, 2011.
It is relevant to mention that the petitioner had completed 10 years' service prior to December 14, 2009, when the Tribunal below passed an order in connection with OA 77/AN/2009, directing the review by the respondent-authorities of the Recruitment Rules (R/R) of 2003,which was admittedly defective, allowing the petitioner to continue in service till the date of his superannuation on August 13, 2011 and further directing the respondents to consider sympathetically the regularisation of the petitioner in his service as per the old R/R.
The 2003 Recruitment Rules were substantially amended in 2010.
Subsequently, the petitioner filed OA 12/AN/2010 with MA 43/AN/2010, which were disposed of by the Central Administrative Tribunal (CAT) vide order dated October 1, 2010, thereby directing the respondents to release the salary of the petitioner and to take decision about the status and position of the petitioner so that he was not deprived of his retirement dues after serving for more than 12 years.
On July 18, 2011, a co-ordinate bench of this Court dismissed W.P.C.T. No.1125 of 2011, thereby affirming the Tribunal's order dated October 1, 2010.
On June 21, 2011, the Tribunal modified its previous order and directed that the UPSC and DOP & T be consulted and also extended the time for the consideration regarding the petitioner for a further period of six months.
However, by an order dated January 4, 2013, the Ministry of Shipping refused the petitioner's request for regularization, which was affirmed by the Tribunal, dismissing OA No.225 of 2013, filed by the petitioner, by its order dated March 13, 2014. Such order of the Tribunal dated March 13, 2014 is the subject-matter of challenge in the present writ petition.
Upon hearing learned counsel for both sides, the Court arrives at the following decision:
The cases germane for consideration in this case are:
(i) Secretary, State of Karnataka and others Vs. Uma Devi (3) and others [(2003) 4 SCC 1];
(ii) State of Karnataka and others Vs. M.L. Kesari and others [(2010) 9 SCC 247].
In Uma Devi's case (supra), the Supreme Court held, inter alia, that a mandamus could not be issued in favour of the temporary employees directing the Government to make them permanent, since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.
In M.L. Kesari (supra), the Supreme Court highlighted the exceptions drawn between illegal and irregular appointments, as discussed in paragraph no.53 of Uma Devi (supra).
According to the said paragraph, as reiterated in M.L. Kesari (supra), an appointment is "irregular" and not "illegal" if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in a duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
In the present case, the Tribunal proceeded on a fundamental misconception of law in holding that the petitioner was governed by the 2003 R/R and that the 2010 R/R could not be made applicable by giving retrospective effect, by overlooking the fact that the relevant juncture for ascertaining such question was the date of initial appointment of the petitioner. The petitioner was appointed with effect from February 16, 1999, when the R/R of 1987 was still in force. The petitioner was fully eligible for the post and had the requisite qualification and experience as per the 1987 R/R at the said juncture when he was first appointed on temporary basis.
Moreover, the petitioner was appointed against a sanctioned post, although without undergoing the process of open competitive selection.
That apart, the writ petitioner had already worked for 10 years on December 14, 2009, when the CAT first requested the respondent-authorities to consider sympathetically the regularization of the petitioner in his post as per the old recruitment rules in connection with OA 77/AN/2009. The petitioner continued in service thereafter under the directions of the Tribunal till the date of his superannuation. However, the respondents have failed to establish by any cogent material that the advertisements issued publicly for filling up the said vacant post met with success even during the period between December 14, 2009 and August 13, 2011. As such, strictly speaking, the continuation in service of the petitioner till the age of superannuation, although on ad hoc basis, was not merely with the benefit or protection of the order of the Tribunal but also on its independent footing, since the sanctioned post could not be filled up by the authorities.
The striking feature in the present case is that, admittedly, the respondents made several efforts to fill up the sanctioned posts, including the one in which the petitioner was functioning, on ad hoc basis, but all the advertisements met with failure, since none having the requisite qualification could be appointed. As such, the respondents did not show charity to the petitioner by continuing his ad hoc appointment but voluntarily did so, having no other option since the posts could not be filled up by open competitive selection even after several publications being made, inviting applications in that regard.
Hence, not only does the petitioner's appointment meet the conditions of "irregular", as opposed to "illegal", appointment, the petitioner was on even better footing than anirregular appointee, since the extension of the ad hoc appointment of the petitioner over the entire period of his service of 12 (twelve) years was the only option left before the respondent-authorities in view of the fact that the regular post where the petitioner was working could not be filled up by open competitive selection despite repeated advertisements. Hence, the continuation of the petitioner in such appointment was the only option left to the respondents, who rendered invaluable service by discharging public duties on behalf of the State.
In view of the petitioner being eligible both under the 1987 and 2010 R/Rs, there is absolutely no reason why the petitioner should not get the benefit of the doctrine of 'equal pay for equal work' not only in respect of his monthly salaries but also with regard to other benefits associated with permanent appointment as well.
The petitioner, in fact and for all practical purposes, discharged the functions of a regular appointee against a sanctioned post for more than 12 years and the right to equality of the petitioner, guaranteed by Article 14 of the Constitution of India, would be squarely violated in the event when the petitioner is refused to be treated on an equal footing with regular employees.
The total number of breaks over the entire period of 12 years was merely 21 days and such artificial breaks were, on their face, given by the respondent-authorities merely to deprive the petitioner of the benefits of regular appointment, despite having exploited the petitioner fully and extracting the work of a regular employee from the petitioner for a period of 12 years. Such "breaks" are, at the most, illusory in nature and cannot be deemed to be sufficient to vitiate the petitioner's claim for regularization or being treated at par with regular employees.
In such view of the matter, the petitioner not only met all the conditions stipulated by the Supreme Court in the cited judgments, as discussed above, for coming within the bracket of "irregular", is opposed to "illegal", appointee, but stands on a stronger footing since the appointment could not be labelled even as "irregular" since the extension of his ad hoc appointment was the only option left before the respondent authorities throughout the relevant period due to the failure of the respondents to fill up the vacant sanctioned post, where the petitioner was working, even after several efforts at open competition by inviting employees through publication.
Thus, the respondent-authorities as well as the Tribunal refused to exercise jurisdiction vested in them by law and by virtue of Article 14 of the Constitution of India in refusing to absorb the petitioner as a regular employee from his date of first appointment, that is, February 16, 1999 till his superannuation on August 13, 2011.
Accordingly, W.P.C.T. No.103 of 2014 is allowed, thereby setting aside the impugned order dated March 13, 2014 passed by the Central Administrative Tribunal, Kolkata Bench, in OA No.225 of 2013 as well as the decision taken by the Ministry of Shipping vide their letter dated January 4, 2013. The respondents shall treat the writ petitioner to have been regularized in his service for the entire period between February 16, 1999 and August 13, 2011 and shall disburse all benefits in accordance with the rules governing regular employees in favour of the petitioner at the earliest. The entire exercise of regularization and regularization with retrospective effect for the period indicated above, as well as disbursal of all benefits due to the petitioner at par with regular employees in the post-in-question, shall be completed as expeditiously as possible, preferably within two (02) months from this date.
There will be no order as to costs.
Urgent certified server copies shall be supplied to the applying parties, subject to due compliance with the necessary requisites.