{"id":105188,"date":"2007-05-02T00:00:00","date_gmt":"2007-05-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/post-master-general-kolkata-ors-vs-tutu-das-dutta-on-2-may-2007"},"modified":"2017-01-17T11:19:42","modified_gmt":"2017-01-17T05:49:42","slug":"post-master-general-kolkata-ors-vs-tutu-das-dutta-on-2-may-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/post-master-general-kolkata-ors-vs-tutu-das-dutta-on-2-may-2007","title":{"rendered":"Post Master General, Kolkata & Ors vs Tutu Das (Dutta) on 2 May, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Post Master General, Kolkata & Ors vs Tutu Das (Dutta) on 2 May, 2007<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, Markandey Katju<\/div>\n
           CASE NO.:\nAppeal (civil)  2319 of 2007\n\nPETITIONER:\nPost Master General, Kolkata & Ors\n\nRESPONDENT:\nTutu Das (Dutta)\n\nDATE OF JUDGMENT: 02\/05\/2007\n\nBENCH:\nS.B. Sinha & Markandey Katju\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n[Arising out of S.L.P. (C) No.  21448 of 2005]<\/p>\n
S.B. SINHA, J.\n<\/p>\n
   1. \tLeave granted.\n<\/p>\n
   2.\tRespondent had been working as a substitute to a regular EDA as and
\nwhen he would remain on leave.  She allegedly had completed a period of
\n240 days in one year prior to 7.5.1985. Respondent joined her services on
\n1.10.1980.   She was disengaged on 10.9.1987.\n<\/p>\n
    3.\tOn or about 12th \/ 13th November, 1987, a circular was issued stating
\nthat although the substitutes of EDA were being engaged on an ad-hoc basis
\nwho were required to perform their duties only for few hours a day, despite
\nabsorption of the regular incumbents, they had been continued as daily rated
\nmazdoor and thus, irregular substitutes who had been working as such prior
\nto 7.5.1985 may be considered for appointment as EDAs in vacant posts,
\neven if they had not been recruited through Employment Exchanges
\nprovided  they were found eligible therefor in all respects statin:-
\n“….It has been decided as one time exception, that
\nsuch daily rated mazdoors irregular substitutes, who
\nhave been working as such from a date prior to 7th
\nMay, 1985, the date of issue of O.M. No.
\n49014\/18\/84-Estt.(C) dtd. 07.5.85 from the Govt. of
\nIndia (Department of Personnel & training) to tally
\nbanning appointment of casual workers otherwise
\nthan through employment Exchanges may be
\nconsidered for appointment as EDAs in vacant posts
\neven if they were not recruited through Employment
\nExchanges provided they are eligible for such
\nappointment in all respects.   It is reiterated that this
\nconcession has not been and cannot be given to the
\ndaily rated\/casual workers from 07.5.1985 from
\nwhich date the nominees of the Employment
\nExchange are only to be considered for such
\nappointment……”\n<\/p>\n
   4.\tRespondent filed an original application before the Central
\nAdministrative Tribunal claiming absorption in the post of EDA relying on
\nor on the basis of the said circular as also claiming parity in terms of an
\norder passed by the Central Administrative Tribunal, Calcutta Bench in O.A.
\nNo. 731 of 1998, Niva Ghosh and Others v Union of India and Others which
\nalthough was initially dismissed but a direction was issued in a review
\nproceedings in terms of an order dated 30.9.1997 directing;
\n“This review petitioners shall be given an
\nopportunity by the respondents to produce
\ndocuments in their possession in support of their
\nperiod of service claimed to have been rendered by
\nthem within 12 weeks from the date of
\ncommunication of this order and if such documents
\nare produced, the same shall be checked and verified
\nby the respondent authorities with reference to
\ndocuments in their office and upon such verification,
\nif it is found that the petitioners or any of them had
\nrendered 240 days of service as substitute ED prior
\nto 7.5.1985, the benefit of the letter dated
\n13.11.1987 of the PMG, West Bengal Circle, shall
\nbe extended to them.  In case it is found by the
\nrespondent authorities after verification of
\ndocuments, if any, produced by the petitioner, they
\nor any of them did not work for 240 days as
\nsubstitute ED prior to 7.5.1985, a reasoned order
\nshall be passed and communicated to the petitioners
\nas soon as such an order is passed.”\n<\/p>\n
   5.\tWhereas pursuant to the said direction, although the case of Niva
\nGhosh was allegedly considered, her case was not, whereupon a contempt
\npetition was filed.   In the said contempt proceedings, a stand was taken by
\nthe appellant that she had not completed a period of 240 days in a year
\nbefore the said cut off date.  The said contempt petition was dismissed with
\nliberty to the respondent to file a fresh original application. Pursuant to the
\nsaid observations, Respondent filed an application before the Central
\nAdministrative Tribunal, Calcutta Bench, Calcutta which was marked as
\nO.A. No. 484\/2002.\n<\/p>\n
   6.\tBy a judgment and Order dated 18.12.2003, the Central
\nAdministrative Tribunal directed;\n<\/p>\n
“Therefore, in the aforesaid fact situation, we direct
\nthe respondent no. 2 to examine the available records
\nalong with certificate granted to the applicant as
\nregards the number of days she had purported to have
\nworked, in consultation with the notification and
\norders passed by the department from time to time and
\nto ascertain whether she had completed  the requisite
\nnumber of days\/ of work for regularisation in service.
\nIn case she is found to have completed 240 days of
\nwork, it is needless to mention that she should also be
\nregularized.”\n<\/p>\n
    7.\tAppellant herein filed a writ petition thereagainst which has been
\ndismissed by reason of the impugned judgment by a Division Bench of the
\nCalcutta High Court; proceeding on the premise that the respondent had
\nbeen working since 1987. Relying or on the basis of a purported
\nobservations made by this Court in Union of India and Others v Debika
\nGuha and Others [(2000) 9 SCC 416] as also the said purported circular
\ndated 12th \/13th November, 1987, the High Court directed as under:-
\n“Considering the aforementioned we find that
\nadmittedly law is settled by the apex Court holding
\nthat even in such case of the petitioner, on
\nadmitted facts the long period of service entitles
\nthe employee to get regularisation.  We also found
\nthat circular issued by the authorities long back in
\nthe year 1987 recognised right of regularisation of
\nan employee in case of a continuous working
\ninspite of irregularities in particular factual
\ncircumstances.   It is admitted that the case of the
\npresent private Respondent is also governed by the
\nsaid circular.   In such circumstances, we find that
\nthe direction given by the learned tribunal for
\nconsideration of the case of the private Respondent
\nhere to be considered for ascertaining whether she
\nhad rendered service for a long period, does not
\nrequire any interference.  The complaint of the
\nauthorities as petitioners here on the ground that
\nthe period of 240 days has no relevance through
\nmentioned in the order of the learned Tribunal,
\nalso does not require any interference as we find
\nthat the said period is also a substantial long period
\nin the facts and circumstances of the case.”\n<\/p>\n
   8.\tMr. Rajiv Dutta, learned senior counsel appearing on behalf of the
\nappellant would submit that the impugned judgment cannot be sustained as
\nquestion of regularisation of the services of the respondent did not arise in
\nview of the decisions of this Court.\n<\/p>\n
    9.\tMr. Pijush K. Roy, learned counsel appearing on behalf the
\nrespondent, on the other hand, submitted that having regard to the decisions
\nof this Court in Debika Guha (supra) as  also the fact that she had been
\ndiscriminated against vis-`-vis the aforementioned Niva Ghosh, the
\nimpugned judgment should not be interfered with by this Court.\n<\/p>\n
  10.\tIt was furthermore submitted that a Constitution Bench of this Court
\nin its decision in Secretary, State of Karnataka and Others v Umadevi (3)
\nand Others [(2006) 4 SCC 1] have opined that a case of this nature, the
\ngeneral ratio laid down therein would not be attracted, the exception was
\nmade in paragraph 53 thereof is squarely attracted in the instant case.\n<\/p>\n
   11.\tWe have noticed hereinbefore that when the services of the
\nrespondent had not been regularized, she filed a contempt application.   An
\nextension was sought for by the appellant to comply with the said direction,
\nwhich having been rejected, the respondent was asked to produce relevant
\ndocuments showing the period during which she had worked as EDA
\nsubstitute in different post offices under South Calcutta Division from time
\nto time prior to 7.5.1985. There is nothing on record to show that she
\nbrought such materials on records. The Tribunal also did not come to a
\ndefinite finding that the respondent had completed 240 days in an year as a
\nsubstituted EDA prior to issuance of the said circular letter dated 12th \/13th
\nNovember, 1987.   It, however, proceeded to issue the directions which we
\nhave noticed hereinbefore.\n<\/p>\n
   12.\tWhat was considered to be permissible at a given point of time
\nkeeping in view the decisions of this Court which had then been operating in
\nthe field, does no longer hold good.  Indisputably the situation has
\ncompletely changed in view of a large number of decisions rendered by this
\nCourt in last 15 years or so.  It was felt that no appointment should be made
\ncontrary to the statutory provisions governing recruitment or the rules
\nframed in that behalf under a statute or the proviso appended to Article 309
\nof the Constitution of India.\n<\/p>\n
   13.\tEquality clause contained in Article 14 and 16 of the Constitution of
\nIndia must be given primacy.  No policy decision can be taken in terms of
\nArticle 77 or Article 162 of the Constitution of India which would run
\ncontrary to the constitutional or statutory schemes.\n<\/p>\n
   14.\tThe question involved herein came to be considered by a Constitution
\nBench of this Court in Umadevi (supra) wherein noticing a long line of
\nrecent decisions and upon consideration of the question as to whether the
\nright to life protected by Article 21 of the Constitution of India would
\ninclude the right of employment as well, vis-a-vis application of principles
\nof equality, it was inter alia held;\n<\/p>\n
“Even at the threshold, it is necessary to keep in mind the
\ndistinction between regularisation and conferment of
\npermanence in service jurisprudence. In State of Mysore
\nv. S.V. Narayanappa<\/a> this Court stated that it was a
\nmisconception to consider that regularisation meant
\npermanence. In R.N. Nanjundappa v. T. Thimmiah<\/a> this
\nCourt dealt with an argument that regularisation would
\nmean conferring the quality of permanence on the
\nappointment. This Court stated: (SCC pp.   416-17, para\n<\/p>\n
26)
\n“Counsel on behalf of the respondent contended that
\nregularisation would mean conferring the quality of
\npermanence on the appointment whereas counsel on
\nbehalf of the State contended that regularisation did not
\nmean permanence but that it was a case of regularisation
\nof the rules under Article 309. Both the contentions are
\nfallacious. If the appointment itself is in infraction of the
\nrules or if it is in violation of the provisions of the
\nConstitution illegality cannot be regularised. Ratification
\nor regularisation is possible of an act which is within the
\npower and province of the authority but there has been
\nsome non-compliance with procedure or manner which
\ndoes not go to the root of the appointment. Regularisation
\ncannot be said to be a mode of recruitment. To accede to
\nsuch a proposition would be to introduce a new head of
\nappointment in defiance of rules or it may have the effect
\nof setting at naught the rules.”\n<\/p>\n
In B.N. Nagarajan v. State of Karnataka this Court
\nclearly held that the words “regular” or “regularisation”
\ndo not connote permanence and cannot be construed so
\nas to convey an idea of the nature of tenure of
\nappointments. They are terms calculated to condone any
\nprocedural irregularities and are meant to cure only such
\ndefects as are attributable to methodology followed in
\nmaking the appointments. This Court emphasised that
\nwhen rules framed under Article 309 of the Constitution
\nare in force, no regularisation is permissible in exercise
\nof the executive powers of the Government under Article
\n162 of the Constitution in contravention of the rules.
\nThese decisions and the principles recognised therein
\nhave not been dissented to by this Court and on principle,
\nwe see no reason not to accept the proposition as
\nenunciated in the above decisions. We have, therefore, to
\nkeep this distinction in mind and proceed on the basis
\nthat only something that is irregular for want of
\ncompliance with one of the elements in the process of
\nselection which does not go to the root of the process,
\ncan be regularised and that it alone can be regularised
\nand granting permanence of employment is a totally
\ndifferent concept and cannot be equated with
\nregularisation.\n<\/p>\n
***\t\t   ***\t\t      ***\t\t\t***
\nOne aspect needs to be clarified. There may be cases
\nwhere irregular appointments (not illegal appointments)
\nas explained in S.V. Narayanappa , R.N. Nanjundappa
\nand B.N. Nagarajan and referred to in para 15 above, of
\nduly qualified persons in duly sanctioned vacant posts
\nmight have been made and the employees have continued
\nto work for ten years or more but without the intervention
\nof orders of the courts or of tribunals. The question of
\nregularisation of the services of such employees may
\nhave to be considered on merits in the light of the
\nprinciples settled by this Court in the cases abovereferred
\nto and in the light of this judgment. In that context, the
\nUnion of India, the State Governments and their
\ninstrumentalities should take steps to regularise as a one-
\ntime measure, the services of such irregularly appointed,
\nwho have worked for ten years or more in duly
\nsanctioned posts but not under cover of orders of the
\ncourts or of tribunals and should further ensure that
\nregular recruitments are undertaken to fill those vacant
\nsanctioned posts that require to be filled up, in cases
\nwhere temporary employees or daily wagers are being
\nnow employed. The process must be set in motion within
\nsix months from this date. We also clarify that
\nregularisation, if any already made, but not sub judice,
\nneed not be reopened based on this judgment, but there
\nshould be no further bypassing of the constitutional
\nrequirement and regularising or making permanent, those
\nnot duly appointed as per the constitutional scheme.
\nIt is also clarified that those decisions which run counter
\nto the principle settled in this decision, or in which
\ndirections running counter to what we have held herein,
\nwill stand denuded of their status as precedents.\n<\/p>\n
   15.\tBefore considering the submission of Mr. Roy based upon paragraph
\n53 of Umadevi (supra), we may notice that in A. Umarani v Registrar,
\nCooperative Societies and Others  [(2004) 7 SCC 112,] this Court held;
\n” No regularisation is, thus, permissible in exercise of
\nthe statutory power conferred under Article 162 of the
\nConstitution if the appointments have been made in
\ncontravention of the statutory rules. ”\n<\/p>\n
   16.\tThe short order which was the subject matter of decision of this Court
\nin Debika Guha (supra) also stood overruled in Umadevi (supra).   We may
\nat this stage also notice that the concept of 240 days to be the cut off mark
\nfor the purpose of regularisation of services came up for consideration of
\nthis Court in Madhyamik Siksha Parishad, U.P. v Anil Kumar Mishra and
\nOthers etc. [AIR 1994 SC 1638], wherein it was clearly laid down that the
\ncompletion of 240 days of continuous service in a year would be attracted
\nonly in a case where retrenchment has been effected without complying with
\nthe provisions contained in Section 25F of the Industrial Disputes Act , but
\nwould not be relevant for regularisation of service.\n<\/p>\n
   17.\tSubmission of Mr. Roy is that the respondent has been discriminated
\nagainst inasmuch as although the services of Niva Ghosh were regularised,
\nshe had not been, may now be noticed.\n<\/p>\n
   18.\tThere are two distinctive features in the present case, which are:-\n<\/p>\n
(i) Equality is a positive concept.   Therefore, it cannot be invoked where
\nany illegality has been committed or where no legal right is established.\n<\/p>\n
(ii)  According to the appellant the respondent having completed 240 days,
\ndoes not fulfil the requisite criteria.   A disputed question of fact has been
\nraised.  The High Court did not come to a positive finding that she had
\nworked for more than 240 days in a year.\n<\/p>\n
   19.\tEven otherwise this Court is bound by the Constitution Bench
\ndecision. Attention of the High Court unfortunately was not drawn to a large
\nnumber of recent decisions which had been rendered by this Court.\n<\/p>\n
   20.\tThe statement of law contained in para 53 of Uma Devi (supra) cannot
\nalso be invoked in this case.  The question has been considered by this Court
\nin a large number of decisions.  We would, however, refer to only a few of
\nthem.\n<\/p>\n
   21.\tIn Punjab Water Supply and Sewerage Board v Ranjodh Singh & Ors
\n[2006 (13) SCALE 426] referring to paragraphs 15, 16 and 53 of Uma Devi
\n(supra), this Court;\n<\/p>\n
“A combined reading of the aforementioned paragraphs
\nwould clearly indicate that what the Constitution Bench
\nhad in mind in directing regularisation was in relation to
\nsuch appointments, which were irregular in nature and
\nnot illegal ones.\n<\/p>\n
Distinction between irregularity and illegality is explicit.
\nIt has been so pointed out in National Fetilizers Ltd. &
\nOrs. vs. Somvir Singh<\/a> [(2006) 5 SCC 493] in the
\nfollowing terms:\n<\/p>\n
        “The contention of the learned counsel
\nappearing on behalf of the respondents that the
\nappointments were irregular and not illegal, cannot
\nbe accepted for more than one reason.  They were
\nappointed only on the basis of their applications.
\nThe Recruitment Rules were not followed.  Even
\nthe Selection Committee had not been properly
\nconstituted.  In view of the ban on employment, no
\nrecruitment was permissible in law. The
\nreservation policy adopted by the appellant had not
\nbeen maintained.  Even cases of minorities had not
\nbeen given due consideration.\n<\/p>\n
    The Constitution Bench thought of directing
\nregularisation of the services only of those
\nemployees whose appointments were irregular as
\nexplained in State of Mysore v S.V. Narayanappa,
\nR.N. Nanjundappa v T. Thimmiah and B.N.\n<\/p>\n
Nagarajan v State of Karnataka wherein this court
\nobserved: [Umadevi (3) case 1, SCC p. 24, para
\n16]<\/p>\n
“16.  In B.N. Nagarajan v. State of
\nKarnataka this Court clearly held that the
\nwords ‘regular’ or ‘regularisation’ do not
\nconnote permanence and cannot be
\nconstrued so as to convey an idea of the
\nnature of tenure of appointments.  They are
\nterms calculated to condone any procedural
\nirregularities and are meant to cure only
\nsuch defects as are attributable to
\nmethodology followed in making the
\nappointments.”\n<\/p>\n
Judged by the standards laid down by this
\nCourt in the aforementioned decisions, the
\nappointments of the respondents are illegal.
\nThey do not, thus, have any legal right to
\ncontinue in service.”\n<\/p>\n
        {See also State of Madhya Pradesh & Ors. vs. Yogesh
\nChandra Dubey & Ors.<\/a> [(2006) 8 SCC 67] and State of
\nM.P. & Ors. vs. Lalit Kumar Verma<\/a> [2006 (12) SCALE
\n642].}<\/p>\n
   22.\tThe same principle has been reiterated recently in Punjab State
\nWarehousing Corp., Chandigarh v Manmohan Singh & Anr. [2007 (3)
\nSCALE 401].\n<\/p>\n
   23.\tFor the reasons aforementioned, the impugned judgment cannot be
\nsustained  It is set aside accordingly.  The appeal is allowed.  In the facts and
\ncircumstances of this case, however, there shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Post Master General, Kolkata & Ors vs Tutu Das (Dutta) on 2 May, 2007 Author: S Sinha Bench: S.B. Sinha, Markandey Katju CASE NO.: Appeal (civil) 2319 of 2007 PETITIONER: Post Master General, Kolkata & Ors RESPONDENT: Tutu Das (Dutta) DATE OF JUDGMENT: 02\/05\/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-105188","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nPost Master General, Kolkata & Ors vs Tutu Das (Dutta) on 2 May, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/post-master-general-kolkata-ors-vs-tutu-das-dutta-on-2-may-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Post Master General, Kolkata & Ors vs Tutu Das (Dutta) on 2 May, 2007 - 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