HARISH TANDAN - (1.) THE petitioner has prayed for a direction upon the respondent authorities to absorb and/or regularise his appointment to the vacant post with full backwages.
(2.) THE case narrated in the writ petition is that the petitioner was appointed to the post of a teacher-cum-clerk in the year 1979 in Nipendra Nath Girls Primary School temporarily and an appointment letter was issued by the secretary of the said school. Since then the petitioner is discharging his duties uninterruptedly and without any break. According to the petitioner, in spite of the request made by the petitioner as well as the Secretary of the Said School, the respondent authorities have not considered the case of the petitioner for regularisation of her appointment as teacher-cum-clerk in the said school. THE District Primary School Council, the respondent No.6, filed affidavit-inopposition in which it is specifically contended that the petitioners appointment can not be regularised in as much as there is no sanctioned post like teachercum- clerk. It is further contended that the appointment of the petitioner is illegal having been made to non-existent post and can not be termed to be irregular. A specific defence is taken that mere increase in the roll strength does not automatically increase the number of post but the same is required to be sanctioned by the competent authority. In other word, the additional post is to be approved by the Competent Authority on increase of roll strength of the pupils. In affidavit in reply the petitioner has contended that there exist a permanent vacancy in the said school and the petitioner can be regularised to such permanent post. Mr. Pradip Kumar Roy, the learned Advocate appearing for the petitioner submits that the petitioner is working uninterruptedly in the said school for more than 31 years and thus, such appointment should be regularised. It is further contended that the appointment of the petitioner at best can be termed to be an irregular appointment and not illegal appointment and relies upon the judgement of the Apex Court in case of Secretary, State of Karnataka and Ors. Vs. Uma Devi (3) and Ors. reported in (2006) 4 SCC 1. He further placed reliance upon another judgement of the Supreme Court in case of State of Karnataka and Ors. Vs. M. L. Kesari Anrs. reported in (2010) 9 SCC 247 to contend that the employee who have worked ten years of more without the benefit or protection of the interim order of any court (or tribunal) is entitled to claim for regularisation of his service ( as a casual workers/ daily wagers). In support of the above contention, reliance is further placed upon the Division bench judgements rendered in case of Pradip Kumar Roy Chowdhury Vs. State of West Bengal and Ors. reported in 2000 (2) CLJ 215 and in case of Sri Adhirath Mandal Vrs. The State of West Bengal and Ors. reported in (2009) 1 WBLR 168 (Calcutta) and a Single Bench Judgement of this court in case of Smt. Manashi Sen (Nee Roy) and Anr. Vs. The State of West Bengal and Ors. reported in 1998 WBLR 78 (CAL). Mr. Tulsi Das Maity, the learned Advocate appearing for the District Primary School Council refuted the above contention of the petitioner in contending that the petitioner is appointed to non-existent existing post and as such he cannot claim the regularisation of her appointment. He further submits that the authorities have not sanctioned any additional post and it can not be said that the appointment of the petitioner is against a sanctioned post. He also relies upon the judgement of the Apex Court in case of Uma Devi (3) (supra) and M. L. Kesari (supra) in support his contention that unless the casual workers/daily wagers are appointed against a sanctioned post, they can not claim regularisation of their illegal appointment. Having heard and considered the respective submission made at the bar, the point hinges for consideration is whether the appointment of the petitioner as temporary employee was against the sanctioned post and can be termed to be irregular and not illegal. It is a specific case of the petitioner that she was appointed by the secretary of the said school as teacher-cum-clerk. Whereas according to the District Primary School Council, there is no existence of post as teacher-cumclerk. The aforesaid contention could not be denied by the petitioner in affidavit in reply where the petitioner claims that there is already a vacancy in the sanctioned post and the authorities can very well approved the appointment of the petitioner to such post.
(3.) THE five judges bench of the Supreme Court in case of Uma Devi (3) (supra) made a distinction between the regularisation and conferment of permanence in service jurisdiction in this words: Even at the threshold, it is necessary to keep in mind the distinction between regularisation and conferment of permanence in service jurisprudence. In State of Mysore v. S.V. Narayanappa this Court stated that it was a misconception to consider that regularisation meant permanence. In R.N. Nanjundappa v. T. Thimmiah this court dealt with an argument that regularisation would mean conferring the quality of permanence on the appointment. This court stated: (SCC pp.416-17, para 26) Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules. In B.N. Nagarajan v. State of Karnataka this Court clearly held that the words regular or regularisation do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. THEy are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This Court emphasised that when rules framed under Article 309 of the Constitution are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. THEse decisions and the principles recognised therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised and that it alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularisation. In most recent judgement, the Apex Court in case of M.L. Kesari (supra) held that if an employee has worked ten years of more in duly sanctioned post without the protection of interim order by any court as one time measure, the government or its instrumentality concerned should take steps to regularise such services in following words: This Court in Uma devi (3)1 further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in arms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court however made one exception to the above position and the same is extracted below: (SCC p. 42, para 53) 53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa2, R.N. Nanjundappa3 and B.N. Nagaranjan4 and referred to in para 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 the courts or of tribunals. The question of regularisation 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 instrumentality should take steps to regularise 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 the 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. It is evident from the above that there is an exception to the general principles against regularisation enunciated in Uma devi (3)1, 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 yen 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. ;