BIRBHUM ZILLA PARISHAD Vs. NITYA HARI CHATTERJEE

JUDGEMENT

(1.) This appeal is directed against a judgment and order dated July 15, 1994 passed by a Learned Single Judge of this Court whereby and where-under the said learned Judge disposed of the writ application filed by the writ petitioners directing the appellants to take steps to absorb them in an existing permanent vacancy commensurate with their qualification within one month from the date of communication of the order. According to the petitioners they had been appointed as daily rated casual workers and working continuously since 1983. The petitioners in the writ application have not annexed any copy of their appointment letter but annexed certain certificates. In one of the certificates it appears that Nitya Hari Chatterjee the writ petitioner was appointed in different departmental work of R.L.E.G.P and J.R.Y. section of the appellant. There does not exist any dispute that the writ petitioners had been working in various schemes, however there exists a dispute as to whether the petitioners had been working in any regular job of the appellant or not. Be that as it may, it cannot be disputed before us that the appellant being a local authority is State within the meaning of Article 12 of the Constitution of India. As a State within the meaning of Article 12 of the Constitution of India, in the matter of filling up of the vacancy, it was bound to comply with the mandatory requirements of Articles 14 an 16 of the Constitution of India as well as the Recruitment Rules, if any. Our attention has been drawn to a circular letter dated May 31, 1985 issued by the State of West Bengal, from a perusal whereof it appears that all the recruitments in the local authorities where recruitment is not made through the P.S.C. shall be made through the Employment Exchange with a view to providing equal opportunity to all in the State in the matter of employment.

(2.) It appears that the matter went up to the Supreme Court of India and the Honourable Supreme Court in its order dated November 13, 1995 has referred to a decision in the case of Delhi Development Horticulture Employees Union v. Delhi Administration, Delhi and Ors., reported in (1992-II-LLJ-452)(SC). It is now well settled that despite the fact that casual employees had worked for a continuous period of 240 days would not be entitled for their absorption although brings (sic) to their retrenchment they will be entitled to the benefits provided under Section 25-F of the Industrial Disputes Act. Reference in this connection may be made to the case of Madhyamik Siksha Parishad, U.P. v. Anil Kumar Mishra, reported in (1994-II-LLJ-997) (SC). Yet recently 'the Supreme Court in the case of J.K. Public Service Commission v. Dr. Narinder Mohan, reported in (1994-I-LLJ-780) clearly held that no appointment can be made by way of regularisation unless the same is provided under the Recruitment Rules. In the case of State of Orissa and Anr. v. Dr. Pari Mohan Misra, reported in 1995 ICLR SC 385, it has been stated that mere prolonged or continuous service does not ripen into regular service or give rise to claim of permanent or substantive status. In the case of V. Sreenivasa Reddy v. Government of Andhra Pradesh, reported in the Apex Court relied upon the decision in the case of R.N. Nanjundappa v. T. Thimmia, reported in (1972-I-LLJ-565) (SC) and B. N. Nagarajan v. State of Karnataka, reported in (1979-II-LLJ-209) (SC) wherein it has been clearly held that regularisation cannot be a mode of service. The Supreme Court in the case of B.N. Nagarajan, (supra) and R.N. Nanjundappa, (supra) categorically stated that there are two modes of appointment, namely, (a) appointment in terms of Recruitment rules and (b) by way of promotion.

(3.) This aspect of the matter has also been recently considered by the. Supreme Court in the case of Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra, reported in (1995-I-LLJ-927). This Court also in various decisions has followed the aforementioned decision of the Supreme Court. Reference in this connection may be made to the case reported in 1996 LIC 28 and 1995 LIC 1853.