JANAKARA PATRA Vs. UNION OF INDIA

JUDGEMENT

(1.) The Original Application vide O.A. No.397 of 2001 filed by the petitioner before the Central Administrative Tribunal, Cuttack Bench, Cuttack claiming for regularization of his service as a Junior Clerk having been dismissed, this writ petition has been filed challenging the said order of the Tribunal.

(2.) The petitioner was appointed as a Khalasi on 30.8.1983. He was promoted to the post of Junior Clerk on ad hoc basis on 20.11.1984. As it appears from the counter affidavit filed by the opposite party No.2, the petitioner was reverted to his substantive post of Khalasi with effect from 1.1.1986 and was promoted to the post of Khalasi Helper on 19.4.1990 on ad hoc basis. As against this stand of opposite party No.2 in the counter affidavit, the petitioner claims that he was reverted back to the post of Khalasi on 19.4.1990. However, challenging the said order of reversion, the petitioner approached the Central Administrative Tribunal in O.A. No. 146 of 1990. The Tribunal allowed the Original Application on 18.12.1990 quashing the order of reversion and directing the opposite parties to adjust the petitioner against the available post of Junior Clerk and also fix his seniority. The opposite parties implemented the order and also challenged the same before the apex Court in SLP (Civil) Nos. 16298-99/91. The said order dated 18.12.1990 passed by the Tribunal in O.A. No.146 of 1990 was quashed by the apex Court and accordingly the petitioner continued again as Khalasi. The petitioner was again promoted to the post of Junior Clerk on ad hoc basis on 30.6.1993 after continuing for a period of two years, he was reverted to the post of Khalasi on the ground of abolition of the post. Again on 20.11.1996 he was promoted to the post of Junior Clerk on ad hoc basis and continued as such till 20.1.1999. Thereafter he again worked as Khalasi and appeared in the written test for selection to the post of Junior Clerk. Though he qualified in the written test, he could not secure the pass marks in the viva voice test. Challenging the said selection, the petitioner again approached the Tribunal but the Tribunal did not interfere with the selection and directed the opposite parties to continue the petitioner against a vacant post of Junior Clerk meant for direct recruits till the post is filled up by direct recruitment candidate. The petitioner again appeared in the written test for promotion to the post of Junior Clerk on 31.7.2001 but could not succeed in the viva voice test and accordingly was not selected. The petitioner thereafter challenged the said selection test by approaching the Tribunal in O.A. No.397 of 2001 seeking for regularization of his service as a Junior Clerk solely on the ground that he had completed five years of service as a Junior Clerk on ad hoc basis and therefore, even if he did not qualify in the viva voice test, his services are to be regularized in view of a circular referred to by the apex Court in the order passed in the Special Leave Petition mentioned earlier. The Tribunal did not accept the claim of the petitioner and rejected the Original Application. Challenging the said order, this writ petition has been filed.

(3.) The learned counsel appearing for the petitioner contended that the apex Court while disposing of the Special Leave Petition observed on the basis of a circular that one Janakar Patra, Respondent No. 2 in he said Special Leave Petition having officiated for more than five years, is entitled to be absorbed in the promotional post and accordingly directed that as and when promotions are made to the post of Junior Clerk in which the said Janakar Patra is working, his claim shall also be considered on the basis of the said circular. The learned counsel further submitted that the petitioner worked as a Junior Clerk on ad hoc basis from 20.11.1984 till 19.4.1990 and had completed more than five years in the promotional post on ad hoc basis during the said tenure. It was also contended by the learned counsel that after 1990, the petitioner was reverted to the post of Khalasi and was again promoted to the post of Junior Clerk on ad hoc basis in spells and if all those spells are taken together, his total period of ad hoc services in the promotional post of Junior Clerk also comes to more than five years and therefore, according to the circular referred to by the apex Court in the said case, the petitioner is entitled to be regularized in the post of Junior Clerk even though he did not qualify in the viva voce test.