The distinction between regularisation and permanence in service jurisprudence and the limitations of Article 162 of the Constitution of India in making irregular appointments.

JUDGMENT:

S.B. SINHA, J.

1. Leave granted.

2.Respondent had been working as a substitute to a regular EDA as and when he would remain on leave. She allegedly had completed a period of 240 days in one year prior to 7.5.1985. Respondent joined her services on 1.10.1980. She was disengaged on 10.9.1987.

3.On or about 12th / 13th November, 1987, a circular was issued stating that although the substitutes of EDA were being engaged on an ad-hoc basis who were required to perform their duties only for few hours a day, despite absorption of the regular incumbents, they had been continued as daily rated mazdoor and thus, irregular substitutes who had been working as such prior to 7.5.1985 may be considered for appointment as EDAs in vacant posts, even if they had not been recruited through Employment Exchanges provided they were found eligible therefor in all respects statin:-

"....It has been decided as one time exception, that such daily rated mazdoors irregular substitutes, who have been working as such from a date prior to 7th May, 1985, the date of issue of O.M. No. 49014/18/84-Estt.(C) dtd. 07.5.85 from the Govt. of India (Department of Personnel & training) to tally banning appointment of casual workers otherwise than through employment Exchanges may be considered for appointment as EDAs in vacant posts even if they were not recruited through Employment Exchanges provided they are eligible for such appointment in all respects. It is reiterated that this concession has not been and cannot be given to the daily rated/casual workers from 07.5.1985 from which date the nominees of the Employment Exchange are only to be considered for such appointment......"

4.Respondent filed an original application before the Central Administrative Tribunal claiming absorption in the post of EDA relying on or on the basis of the said circular as also claiming parity in terms of an order passed by the Central Administrative Tribunal, Calcutta Bench in O.A. No. 731 of 1998, Niva Ghosh and Others v Union of India and Others which although was initially dismissed but a direction was issued in a review proceedings in terms of an order dated 30.9.1997 directing;

"This review petitioners shall be given an opportunity by the respondents to produce documents in their possession in support of their period of service claimed to have been rendered by them within 12 weeks from the date of communication of this order and if such documents are produced, the same shall be checked and verified by the respondent authorities with reference to documents in their office and upon such verification, if it is found that the petitioners or any of them had rendered 240 days of service as substitute ED prior to 7.5.1985, the benefit of the letter dated 13.11.1987 of the PMG, West Bengal Circle, shall be extended to them. In case it is found by the respondent authorities after verification of documents, if any, produced by the petitioner, they or any of them did not work for 240 days as substitute ED prior to 7.5.1985, a reasoned order shall be passed and communicated to the petitioners as soon as such an order is passed."

5.Whereas pursuant to the said direction, although the case of Niva Ghosh was allegedly considered, her case was not, whereupon a contempt petition was filed. In the said contempt proceedings, a stand was taken by the appellant that she had not completed a period of 240 days in a year before the said cut off date. The said contempt petition was dismissed with liberty to the respondent to file a fresh original application. Pursuant to the said observations, Respondent filed an application before the Central Administrative Tribunal, Calcutta Bench, Calcutta which was marked as O.A. No. 484/2002.

6.By a judgment and Order dated 18.12.2003, the Central Administrative Tribunal directed;

"Therefore, in the aforesaid fact situation, we direct the respondent no. 2 to examine the available records along with certificate granted to the applicant as rega