Union of India (UOI) and Others vs Kishan Gopal Vyas

Delay condoned.

Special leave granted. Heard.

The respondent, Kishan Gopal Vyas, a casual labourer, was appointed as Khalasi in October 1969 under the Inspector of Works in the Railways at Bikaner which is a Class IV post in the Civil Engineering Department. The respondent claimed that he was entitled to be regularised as a Storekeeper/Clerk which is a Class III post in that Department because he possessed the requisite qualification for that post and he had been working in that capacity for quite some time. An application made to this effect by the respondent has been allowed by the central Administrative tribunal, Jodhpur bench by the impugned order dated 6/7/1992. The tribunal has given a direction as under:

"We accordingly allow the application partly and direct that the applicant be paid the arrears on account of difference between the pay of Store Issuer/Store Clerk on which post he was working and the pay already drawn, period of three years before the date of his filing of application in the Tribunal viz. 23/8/1990 and thereafter, shall also be allowed to continue to perform the duties of the post of Store Clerk/Store Issuer and paid accordingly unless he fails to qualify in or to avail of two additional chances to qualify in the suitability test for promotion to the post of clerk or the work presently entrusted to him is entrusted to an existing or a regularly appointed clerk. Parties to bear their own costs."

Aggrieved by the order of the tribunal, this appeal by special leave has been filed by the Union of India.

The appellant has throughout contested the respondent''s claim of working on a Class III post of Storekeeper/Clerk. Admittedly, there is no order in writing to support the respondent''s claim to this effect. The only material which forms the basis of the tribunal''s order is some correspondence within the Department which is at pp. 45-53 of the paper-book. The question, therefore, is whether this material can support the respondent''s claim and consequently the tribunal''s order.

The first document is Annx. III dated 18/1/1978 (at pp. 45-46 of the paper-book). This is a letter from the office of the Divisional Engineer, Bikaner to the Inspector of Works, Bikaner. No mention is made therein of the respondent and there is nothing therein to indicate that the respondent was appointed on a Class III post or any such work was taken from him. It relates only to the work at that place with no particular reference to anyone working therein. The next document is Annexure-IV dated 20/11/1978 (at p. 47 which refers to the respondent and merely says that he is deputed to work and handle uniform centre. The next document is Annexure-VI dated 31/5/1986 (at p. 48 and relates to the representation made by the respondent describing him as Khalasi under IOW/Bikaner. To this document is annexed a letter dated 24/12/1986 of the IOW/Bikaner addressed to the Assistant Superintending Engineer of the Department. The letter says that there is no Store Issuer and it was essential to post a suitable Class III staff, that is. Store Issuer who can maintain all the records. It then makes a recommendation for appointment of the respondent to that post. Next is Annexure-VIII dated 12/5/1987 (at p. 51 from IOW/Bikaner to the Assistant Engineer, Bikaner on the subject of posting of a clerk on ad hoc basis and therein again a recommendation is made describing respondent as a Khalasi for posting him as a clerk on an ad hoc basis till the permanent clerk is posted. Next is a letter dated 28/11/1987 from Assistant Engineer, Bikaner to Divisional Superintending Engineer, Bikaner making a recommendation for trial of respondent in the job of a clerk. The next document is a letter dated 4/4/1988 from Divisional Superintending Engineer to DCOS/Bikaner describing respondent as a material chaser and deputing him to assist in chasing of material. This is the entire correspondence available for deciding the controversy.

We find nothing in any of these documents, by itself or collectively, to suggest that the respondent was at any time appointed to work as a Storekeeper or Clerk as he claims. This being the only material for deciding the controversy, it is difficult to appreciate the conclusion reached by the tribunal that the respondent was working as a Storekeeper/Issuer/Clerk at any time to sustain the direction for his regularisation in that capacity or for payment of any salary to him treating him as a Storekeeper/Store Issuer/Clerk for any period. For the same reason, the tribunal''s direction to allow the respondent to continue to perform all the duties of the Storekeeper/Store Issuer made in the impugned order has no basis.

Appointment to the post of a Storekeeper/Store Issuer/Clerk is regulated by certain rules governing recruitment to the post in the Department. The respondent, if eligible, is entitled to be considered for the same along with all others who may be candidates for the appointment. That is the only correct way of filling these posts which would ensure equal opportunity in the matter of employment as required by Articles 14 and 16 of the Constitution of India to all eligible persons who are candidates for these posts. A direction like the one given by the tribunal in favour of the respondent or anyone like him has the effect of denying equal opportunity to the other eligible candidates by appointing a person not in accordance with the rules. Any order for absorption and regularisation of a person not appointed in accordance with the rules, given in the manner contained in the impugned order of the tribunal would result in denial of equal opportunity in the matter of employment to the other eligible candidates for the public offices. Such a course must obviously be eschewed. The tribunal''s order is, therefore, set aside.

We may, however, observe that the respondent would be entitled to be considered for appointment to the post of a Storekeeper or Clerk in accordance with his entitlement and in conformity with the rules applicable for appointment to the posts, subject to the conditions of eligibility prescribed for the post.

Consequently, the appeal is allowed and the impugned order of the Tribunal is set aside. No costs.