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1999 Supreme(Cal) 453
High Court Of Calcutta
RUMA PAL, S. N. BHATTACHARJEE
STATE OF WEST BENGAL - Appellant
Versus
ASHOKE RANJAN CHANDRA - Respondent
W. P. S. T. 1 Of 1999
Decided On : 08/18/1999
Ad-hoc appointments cannot be regularised and the Tribunal has no jurisdiction to direct the reinstatement of an ad-hoc appointee.
Headnote:
REGULARISATION OF AD-HOC APPOINTMENT - ARTICLE 309 OF THE CONSTITUTION OF INDIA - WEST BENGAL COMMERCIAL TAXES (RECRUITMENT) RULES, 1997 - AD-HOC APPOINTMENT OF CASHIER AND ASSISTANT CASHIER - REGULARISATION OF SERVICES - WHETHER AD-HOC APPOINTMENT CAN BE REGULARISED - WHETHER THE TRIBUNAL HAD JURISDICTION TO DIRECT THE APPOINTMENT OF THE RESPONDENT.
Fact of the Case:
The respondent, an ad-hoc appointee as Assistant Cashier in the Commercial Taxes Directorate, challenged the order of reversion to the post of peon before the Tribunal. The Tribunal directed the reinstatement of the respondent as Assistant Cashier and payment of consequential financial benefits. The petitioners, who were respondents before the Tribunal, filed a writ petition challenging the Tribunal's decision.
Finding of the Court:
The court held that the ad-hoc appointment of the respondent was made pending the framing of Recruitment Rules and could not be regularised. The court further held that the Tribunal had no jurisdiction to direct the reinstatement of the respondent.
Issues: 1. Whether the ad-hoc appointment of the respondent could be regularised. 2. Whether the Tribunal had jurisdiction to direct the reinstatement of the respondent.
Ratio Decidendi: 1. The court relied on the Supreme Court decisions in J and K Public Service Commission v. Dr. Narinder Mohan and Ors. and State of Madhya Pradesh v. Dharm Bir to hold that ad-hoc appointments cannot be regularised. 2. The court held that the Tribunal had no jurisdiction to direct the reinstatement of the respondent as the subject matter of the writ petition was beyond the scope of the Tribunal's jurisdiction.
Final Decision: The court quashed the Tribunal's order and allowed the writ petition.
( 1 ) THE issue involved in this writ petition is whether the respondent No. 1, an ad-hoc appointee could be regularised in service. The State Administrative Tribunal has held that he could and has directed regularisation of the services of the respondent No. 1. The petitioners have assailed this decision before us.
( 2 ) THE situation arose because vacancies in the Cashiers and Assistant Cashiers office in the Commercial Taxes Directorate could not be filled up as Recruitment Rules had not been finalised. To meet the urgent need to fill up the existing vacancies, an order was passed on 18th July, 1994 by which the Governor authorised the Commissioner of Commercial Taxes, West Bengal to make ad-hoc appointment to the posts of Cashiers and Assistant Cashiers from amongst the existing eligible employees of the Commercial Tax Directorate pending finalisation of the Recruitment Rules.
( 3 ) IN compliance with this order, the Commissioner wrote to the different branches of the Directorate of Commercial Taxes requesting them for names of Lower Division Clerks/steno Typist Clerks/bench Clerks-cum-Steno/qualified Record Supplier/cashier workers/group D staff who were willing to be considered for check-posts under the Directorate in the "pay scale of Rs. 1040-25-1 215-30-1 485-35-1 590-40-1 670-50-1 920 plus other allowances as admissible under the rules from time to time on regular basis".
( 4 ) THE respondent No. 1 was then a confirmed peon working under the Deputy Commissioner, Commercial Taxes, Midnapore Circle. His name along with others was forwarded for the purpose of being appointed to the post of Assistant Cashier.
( 5 ) BY an office order dated 30th September 1994, five permanent peons/lower Division Clerks including the respondent No. 1 were temporarily appointed in the post of Assistant Cashier for the check posts under the Directorate on ad-hoc basis for six months in the pay scale of Rs. 1040-25-1215-30-1135-35-1590-40-1670-50-1920 plus other allowances as might be admissible under the rules with effect from the date on which they joined as such and until further order. The respondent No. 1 was released from his post and duly joined as Assistant Cashier on 21st October 1994.
( 6 ) IN 1997, the Recruitment Rules were framed with effect from 19. 09. 97 for inter alia the post of Cashier, Assistant Cashier and Cash Sarker under the Directorate of Commercial Taxes. The Rules were famed in exercise of powers under Article 309 of the Constitution of India. The methods and qualifications for appointment which are relevant for this case are follows:"assistant Cashier Ordinarily by promotion of Must have passed Madhyamik qualified Cash Sarker; when Pariksha (Secondary Examination)suitable departmental candidates of the Board of Secondary will not be available by selection Education, West Bengal or its (direct recruitment) equivalent. Class VIII-Pass certificates from a re-cognised school. Experience in serving as peon or record Supplier in Govt. Office or undertaking. Cash Sarkar Ordinarily by promotion from the posts of Peons or by transfer from record Suppliers who have experience in serving Accounts deptt. or, when suitable departmental candidate will not be available, by selection (Direct recruitment ). "
( 7 ) THE respondent No. 1 claims that he is qualified for the post of Assistant Cashier as he had passed the Madhyamik Pariksha. The petitioners do not admit this and have said that in any event the post of assistant cashier was a promotional post from cash sarkar and that peons like the petitioner could not be treated as an Assistant Cashier. Accordingly by an order dated 9th June 1998 the peons including the respondent No. , I who were temporarily appointed to act as assistant cashier on ad hoc basis were reverted to the post of peon.
( 8 ) THE respondent No. 1 challenged the order of reversion before the Tribunal. The Tribunal, which was constituted only by the Administrative Member, said that as the pet
