Sri Ashim Bhowmik v. The State of Tripura and Anr

JUDGMENT & ORDER (ORAL)

Heard Ms. A. Debbarma, learned counsel appearing for the petitioner. Also heard Mr. D. Sarma, learned Additional G.A. appearing for the State-respondents.

2.

This is a petition for regularization of the service of the petitioner.

3.

It is the case of the petitioner that he joined in service as Contingent Worker, Group "D" on 01.08.2006 under the respondents and till then, he has been rendering his service in the said post. It is also the case of the petitioner that he is fully covered by the memorandum dated 21.01.2009,

03.01.2014 and 31.07.2018 wherein the State Government had formulated schemes for regularization of the services of DRWs/PTWs/Casual/ Contingent, etc, workers which have already been repealed under Memorandum dated 31.07.2018 issued by the State.

4.

In the context of the case, it will be worthy to take note of the decision of the Constitution Bench of the Supreme Court in State of Karnataka and Ors. Vs. Uma Devi (3), (2006) 4 SCC 1 whereby and whereunder directed the Central and State Governments to formulate schemes for regularization of the services of those employees who were engaged/appointed irregularly, but not illegally and further held as under:- "43. In M.P. State Coop. Bank Ltd. Bhopal vs Nanuram Yadav and others, reported in (2007) 8 SCC 264, the Hon'ble Supreme Court held that: [SCC pp. 274, 275, Para 24] "24) It is clear that in the matter of public appointments, the following principles are to be followed: 1) The appointments made without following the appropriate procedure under the Rules/Government Circulars and without advertisement or inviting applications from the open market would amount to breach of Arts. 14 & 16 of the Constitution of India.

2) Regularisation cannot be a mode of appointment.

3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization.

4) Those who come by back door should go through that door.

5) No regularization is permissible in exercise of the statutory power conferred under Art. 162 of the Constitution of India if the appointments have been made in contravention of the statutory Rules.

6) The Court should not exercise its jurisdiction on misplaced sympathy. 7) If the mischief played so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.

8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside."

¶44Again, the Hon'ble Supreme Court in Vibhuti Shankar Pandey vs. State of Madhya Pradesh & Ors., reported in (2023)3 SCC 639 had set aside the order of learned Single Judge of Madhya Pradesh High Court directing the State to regularize the service of the petitioner who was appointed on daily rated basis under a project and not against any sanctioned post as it was noticed that the initial appointment of the petitioner/appellant was not made by the competent authority and the appointment was not made against a sanctioned post. The Hon'ble Supreme Court in Vibhuti Shankar(supra) has reiterated the principle laid down in Umadevi (supra). [SCC p 640 para 4]. As I said earlier, in the case in hand, the initial appointment of the petitioners was not made by the

competent authority of the Corporation and there is no evidence that they were appointed against sanctioned vacant post.

¶45In a recent decision, the Hon'ble Supreme Court in Government of Tamil Nadu & Anr. vs. Tamil Nadu Makkal Nala Paniyalargal & Ors., 2023 SCC Online SC 393, relying upon the judgments of the Supreme Court in Chander Hass(supra) and Maharashtra State Road Transport Corporation(supra) reiterated the principles that the creation of posts is not within the domain of judicial functions and it pertains to the executive or legislature. In the case of Government of Tamil Nadu(supra), the Hon'ble Supreme Court has categorically held that in absence of sanctioned posts, the State cannot be compelled to create the post and absorb the persons who are continuing in service of the State."

5.

The Supreme Court in State of M.P. Vs. Lalit Kumar Verma,

(2007) 1 SCC 575 has made a distinction between "irregular appointment" and "illegal appointment" as under:- "12. The question which, thus, arises for consideration, would be : is there any distinction between "irregular appointment" and "illegal appointment"? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is "State" within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance with the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to."

6.

Again, in Siraj Ahmed Vs. State of U.P. by judgment dated

13.12.2019 passed in Civil Appeal No.9412/2019, the Supreme Court re-iterated the same principle and held as under:- "12. It can thus be seen that this Court has held that the distinction between irregular appointment and illegal appointment is clear. It has been held that in the event appointment is made in total disregard to the constitutional scheme and the recruitment rules framed by the employer, where the employer is "State" within the meaning of Article 12 of the Constitution of India, the recruitment will be illegal one. It has, however, been held that where although, substantial compliance with the constitutional scheme, as also the Rules have been made, the

appointment would become irregular inasmuch as some provisions of some rules have been adhered to.

¶13Subsequently, another Bench of this Court in State of Karnataka v. M.L. Kesari [State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826] also had an occasion to consider the issue. The Court observed thus: (SCCp. 250, para 7) "7. It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi (3) *State of Karnataka v. Umadevi(3), (2006) 4 SCC 12006 SCC(L&S) 753], if the following conditions are fulfilled:

(i) The employee concerned should have worked for 10 years or more in 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."

¶14This court held in M. L. Kesari Case [State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826] that where the appointment are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointment will be considered to be illegal. However, when the person employed possessed the prescribed qualifications and is working against the sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular."

7.

Thus, the upshot of the matter is as to whether appointment/engagement of the petitioner was in consonance with the mandate of Articles 14 and 16 as well as in the spirit of the law laid down in Uma Devi (3)(supra) and subsequent decision cited here-in-above.

8.

In the instant case, after perusal of the documents annexed to the writ petition, I find that the petitioner has failed to justify that he had been appointed against any regular sanctioned vacant posts. It is revealed

that he had been appointed under a scheme only and his service was discontinued thereafter by issuing a corrigendum which was, however, withdrawn later on. There is no evidence to show that the petitioner had possessed the requisite qualifications for holding the post he has sought for. Moreso, the petitioner had been appointed illegally without following the procedure prevalent at that time vis a vis de hors the constitutional schemes of public employment.

9.

It is submitted that the petitioner"s right to claim regularisation was ripened during the existence of the schemes, that is, prior to 31.07.2018 when those schemes were repealed by the Government of Tripura after continuation of long 10(ten) years. This Court and other Co-ordinate Benches had passed orders directing regularization of many DRW/Casual/Contingent workers without taking into account the various parameters and conditionalities mentioned in the schemes as well as in total disregard to the spirit of law laid down in Uma Devi (3) (Supra). As such, those judgments and orders cannot be treated as precedent. Furthermore, in Uma Devi (3) (Supra), the Apex Court strongly deprecated the idea of such irregular appointments and asked the Central and State Governments to adhere to the constitutional schemes of public employment as enshrined in Articles 14 and 16 of the Constitution of India in Government jobs, however, permitted the Governments to regularize the services of such irregularly appointed employees as "one-time measure" who had completed 10(ten) years of service or had been continuing in service for more than 10(ten) years without the intervention of orders of the Court or Tribunals in duly sanctioned posts. Here, it would be apposite to refer Para 53 of the judgment, which is reproduced hereunder:- "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore vs.

S.V. Narayanappa, reported in (1967) 1 SCR 128, R.N. Nanjundappa vs. T. Thimmiah, reported in (1972) 1 SCC 409, B.N. Nagarajan vs. State of Karnataka, reported in (1979) 4 SCC 507, and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

10.

Moreso, the process of regularization undertaken by the Government in compliance with the directions passed in the case of Uma Devi (3) (supra) is a kind of special drive to regularize irregularly appointed Daily Rated Workers/Contingent Workers/Casual workers, etc under different schemes.

11.

In the opinion of this Court, this special drive cannot be allowed to continue for years together, which, needless to say, will defeat the Constitutional schemes of public employment. Thousands and thousands of eligible persons shall be deprived of public employment in the process of regularization of irregularly/illegally appointed employees if it is permitted to continue for an indefinite period, which was not the object of the case of Uma Devi (3)(supra). It is pertinent to mention herein that the State of Tripura has continued with those special schemes for long 10(ten) years till

31.07.2018. It must be stopped, so that thousands and thousands of eligible

persons can avail the opportunity of public employment within the framework of the Constitution.

12.

In the opinion of this Court, the petitioner being entered into service irregularly, if desirous to get the benefit of the schemes which were framed for the purpose of regularisation of irregularly appointed employees "as one time measure", had to raise his claim within the realm and existence of the scheme, and not after the schemes of regularization were repealed.

13.

There is yet another aspect, which is essential to notice in the facts of the case in hand. The petitioner was appointed on 01.08.2006. Under the scheme, there was complete ban of appointing any person after

31.03.2003, but, though the petitioner was appointed after such cut-off date, he, only in the year 2023 suddenly woke up from the slumber to claim regularisation after decades. Law will not come to the rescue of those who are negligent and careless. It is well-recognized principle of law that those who sleep over their rights and allow their rights to be obliterated and that of others to be ripened into full fledged rights would not be helped by the Courts in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India. The Courts of Law will help those who help themselves. The above view of mine is fortified by a decision of the Supreme Court in State of Orissa Vs. Pyarimohan Samantaray and Ors.

(1977) 3 SCC 396 where their Lordships had observed that:- "6. It would thus appear that there is justification for the argument of the Solicitor General that even though a cause of action arose to the petitioner as far back as 1962, on the rejection of his representation on November 9, 1962, he allowed some eleven years to go by before filing the writ petition. There is no satisfactory explanation of the inordinate delay for, as has been held by this Court in Rabindra Nath Bose v. Union of India, the making of repeated representations, after the rejection of one representation, could not be held to be a satisfactory explanation of the delay. The fact therefore remains that the petitioner allowed some 11 years to go by before making a petition for the redress of his grievances. In the meantime a number of other appointments were also made to the Indian Administrative Service by promotion from the

State Civil Service, some of the officers received promotions to higher posts in that service and may even have retired. Those who continued to serve could justifiably think that as there was no challenge to their appointments within the period prescribed for a suit, they could look forward to further promotion and higher terminal benefits on retirement. The High Court therefore erred in rejecting the argument that the writ petition should be dismissed because of the inordinate and unexplained delay even though it was "strenuously" urged for its consideration on behalf of the Government of India".

14.

In this context of the case, I may also gainfully refer the case reported in AIR 1987 SC 251, State of M. P. v. Nand Lal Jaiswal where it was held that "it is well settled that the power of the High Court to issue an appropriate writ under Art. 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties."

15.

Following the aforesaid principles, it would not be wrong to hold that the delayed approach and lackadaisical attitude of the petitioner would not entail him to get the benefit of non-existent schemes. In the opinion of this Court, this petition is absolutely barred by delay and laches. That apart to re-iterate, the nature of appointment of the petitioner is not only irregular but illegal.

16.

This Court while dealing with similar issue in WP(C) No.5 of 2023 titled as Sri Satya Ranjan Dey and Anr. Vs. The State of Tripura and

4 Ors. decided on 06.09.2023 had passed a detailed order referring many judgments of the Hon"ble Apex Court and held that the petitioners of that writ petition were not entitled to get their services regularized, and dismissed the writ petition.

17.

Recently, the Hon"ble Supreme in Ganesh Digamber Jambhrunkar and ors vs. The State of Maharashtra and ors, in Special leave to Appeal (C) 2543 of 2023, has opined that working for long period on contractual basis creates no vested right for regularization. In this context, the Hon"ble Supreme Court has held that 'we appreciate the argument of the petitioners that they have given best part of their life for the said college but so far as law is concerned, we do not find their continuous working has created any legal right in their favour to be absorbed. In the event there was any scheme for such regularization, they could have availed of such scheme but in this case, there seems to be none. We are also apprised that some of the petitioners have applied for appointment through the current recruitment process. The High Court has rejected their claim mainly on the ground that they have no right to seek regularization of their service. We do not think any different view can be taken.

18.

Another noticeable feature is that there is no document to justify that the petitioner was appointed by the competent authority. Furthermore, regularization is not a matter of right, but, a right to be considered. It is submitted by Mr. D. Sarma, learned Additional GA that the petitioner was appointed on "Monthly Rated Contingent Worker" which is different than that of DRW, Casual as well as Contingent workers. The remuneration of "Monthly Rated Contingent Workers" used to be determined as per notification published by the Government from time to time.

19.

Recently, a Division Bench of this Court [comprising of the Chief Justice (Aparesh Kumar Singh) and myself] has dealt with the matter of regularization elaborately in W.A. 112 of 2022, titled as The State of Tripura & 3 others vs. Smt. Suprava Debnath, decided on 16.10.2023

20.

In the light of above discussion, I do not find any merit in the present writ petition and the same stands dismissed.

JUDGE

Saikat SANJAY GHOSH Date: 2023.10.26 14:24:17 +05'30'

HIGH COURT OF TRIPURA AGARTALA WP(C) No.506 of 2023 Sri Ashim Bhowmik, S/O late Rakhal Chandra Bhowmik, resident of Bidya Sagar Palli, Ujan Abhoynagar, near Hindi H.S. School, Abhoynagar, West Tripura, Pin-799005 ….Petitioner(s) Versus 1. The State of Tripura to be represented by the Secretary, Finance, Government of Tripura, New Secretariat Building, New Capital Complex, P.S. New Capital Complex, Agartala, West Tripura, Pin-799010 2. The Commissioner of Taxes & Excise, P.N. Complex, Gurkhabasti, Agartala West Tripura ….Respondent(s) For the Petitioner(s) : Ms. A. Debbarma, Advocate For the Respondent(s) : Mr. D. Sarma, Addl. GA Date of hearing and Delivery of Judgment & Order : 19/10/2023 Whether fit for reporting : No HON'BLE MR. JUSTICE ARINDAM LODH