The Honble Lt. Governor and Ors. Vs Shri. N.R.Sudheer Kumar and Ors.

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IN THE HIGH COURT AT CALCUTTA [ CIRCUIT BENCH AT PORT BLAIR ]

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PRESENT: THE HON’BLE JUSTICE AMRITA SINHA AND THE HON’BLE JUSTICE UDAY KUMAR

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MAT/29/2024 IA No: CAN/1/2024

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THE HON’BLE LIEUTENANT GOVERNOR AND OTHERS … PETITIONERS

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VS.

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SHRI N.R. SUDHEER KUMAR AND OTHERS … RESPONDENTS

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For the petitioner : Mr. Shatadru Chakraborty, Sr. Adv Mr. Rakesh Kumar Mr. Dibesh Dwivedi For the respondents : Mr. Gopala Binnu Kumar Heard on : December 10, 2024 December 11, 2024 Judgment on : December 16, 2024

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AMRITA SINHA, J.

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The order passed by the Hon’ble Single Bench on 02^nd April, 2024 disposing of the writ petition filed by the petitioners by directing the Administration to modify the impugned order dated 13^th March, 2020 and to make it in tune with the order no. 298 of

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the Administration dated 08^th December, 2009 governing the Home

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Guards is impugned in the instant appeal. The Hon’ble Single Judge directed the Administration to regularize the appointment of the writ petitioners from the date of their respective appointments as Daily Rated Mazdoors and further directed the Administration to extend the benefit of clause 3 of the terms and conditions of the order dated 08^th December, 2009 to the petitioners. The aforesaid direction was to be undertaken within a stipulated time period.

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The issue relates to regularization of Daily Rated Mazdoors whose service has been regularized by the Administration vide the impugned order dated 13^th March, 2020 with effect from 21^st November, 2019. The dispute is whether the date of regularization will be from 21^st November, 2019 or from the initial date of appointment of the writ petitioners.

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The Hon’ble Single Judge was of the opinion that the regularization should be from the initial date of appointment as granted in case of the Home Guards. The Court opined that the Administration cannot discriminate between two sets of group D employees and directed to grant similar benefits to the petitioners as granted to the Home Guards.

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The Administration is aggrieved by the same and hence this appeal.

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According to the appellants, the petitioners cannot be treated at par with the Home Guards. The Administration regularized the appointment of the Home Guards in compliance of a writ of mandamus that was issued by the Court. In the instant case, there is no specific order or any mandamus issued by any Court directing regularization of the petitioners from their initial date of engagement. The Administration issued the order of regularization in compliance of the order passed by the Hon’ble High Court on 22^nd August, 2019 in WP No. 187 of 2019 (Shri N.R.Sudhir Kumar and others vs. Union of India and others).

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It has been submitted that the Home Guards were regularized in service pursuant a scheme framed by the Administration; whereas, in the instant case no scheme has been framed by the Administration for regularizing the service of the petitioners. The regularization is being done in terms of the order passed by the Ministry of Tourism.

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The judgment passed by the Hon’ble Division Bench of this Court on 22^nd January, 2007 in the appeal preferred by the Home Guards being MAT No. 25 of 2006 (Smt. Parul Debnath and others vs. Union of India and others) has been placed in extenso by the learned senior counsel representing the appellants to prove that

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the Home Guards and the petitioners do not lie on the same footing. The facts and circumstances of the case of the Home Guards are nor similar to the facts of the petitioners and, accordingly, the two sets of employees cannot be treated at par.

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It has been submitted that the order of regularization is to act prospectively and the same cannot have any retrospective effect.

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Prayer has been made to set aside the order of the Hon’ble Single Judge by upholding the order of the Administration regularizing the service of the petitioners on and from 21^st November, 2019.

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In support of the submission and prayer made herein above, the appellants rely upon the following judicial precedents: -

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(i) Judgment delivered by the Hon’ble Supreme Court in the matter of Union of India and others vs. Ilmo Devi and another reported in (2021) 20 SCC 290 .

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(ii) Judgment delivered by the Hon’ble Supreme Court in the matter of Union of India and others vs. AIR Commodore N. K. Sharma (17038) ADM/LGL reported in 2023 SCC OnLine SC 1673 .

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(iii) Judgment delivered by a Coordinate Bench of this Court in the matter of Andaman and Nicobar Rajya Karmachari Mahasangh and another vs. Lieutenant Governor and others reported in 2024 SCC OnLine Cal 10063 .

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(iv) Judgment delivered by a Coordinate Bench of this Court in the matter of Subash Chandra Das vs. General

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Manger, HR, Human Resources Division, Punjab National

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Bank and others reported in 2023 SCC OnLine Cal 5790 .

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Learned advocate representing the writ petitioners submits that the issue of creation of supernumerary posts for regularization of the workmen was mooted by the Administration and placed before the Under Secretary (Adm.), Ministry of Tourism vide communication dated 20^th August, 2018. There was no occasion for the petitioners to approach the Court at that stage for regularizing their service.

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As the Ministry sat tight after receiving the proposal from the Administration, the petitioners approached this Court by filing writ petition being WP No. 187 of 2019 which stood disposed of by the Court on 27^th August, 2019 by directing the Union of India to make

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its decision known on the issue within a stipulated time period.

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The Court took note of the fact that the petitioners were engaged on daily rated basis and thereafter on casual basis and have completed twenty years of service.

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In compliance of the order of the Court the Government of India, Ministry of Tourism passed order on 21^st November, 2019 indicating that the proposal of the Administration forwarded by the Ministry of Home Affairs to the Ministry of Tourism was considered and consultations were made with the Department of Personnel and Training, Department of Legal Affairs and Department of Expenditure. The competent authority approved creation of thirty two supernumerary posts for regularization of workmen working in the Administration subject to the condition laid down in paragraph 4 of the Department of Expenditure Office Memo No. 7(1)/E.CoordI/2017 dated 12^th April, 2017. The order of regularization had been issued with the concurrence of the Department of Expenditure.

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Vide communication dated 29^th November, 2019 the Under Secretary, Government of India, Ministry of Home Affairs requested the Chief Secretary of the Administration to take necessary steps for implementation of the order dated 21^st November, 2019 on priority basis to avoid further legal complication in the matter.

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Following such request the order no. 255 dated 13^th March, 2020 has been issued by the Administration.

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It has been submitted that there is no direction from the Ministry for fixing a date for giving effect to the order of regularization. Once the proposal for regularization has been approved by the Government, the Administration ought not to have made the same applicable on and from a particular date. The same ought to be made applicable on and from the initial date of their engagement, as has been done in case of the Home Guards.

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Learned counsel representing the writ petitioners have drawn the attention of the Court to the order of regularization issued in respect of the Home Guards. The wordings and the expression used in the order of regularization of the Home Guards are absolutely similar to the order of regularization issued in case of the petitioners. It has been contended that the Administration ought not to discriminate two sets of employees of the same Administration.

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Prayer has been made to dismiss the appeal with direction upon the appellant to comply with the order passed by the Hon’ble Single Judge.

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We have heard and considered the submissions made on

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behalf of both the parties and perused the materials on record.

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The justification for the functional requirement of the workmen as mentioned in the communication of the Director (Tourism) is that, the service of thirty-two workmen is essential to the Directorate of Information, Publicity and Tourism for meeting functional requirements of the guest house, beach management, tourism promotional activities and managing the assets owned by the department. Request was made to create supernumerary posts to accommodate the workmen and regularize their service with the Administration to enable optimal utilization and deployment.

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The justification for functional requirement prepared by Director (Tourism) Port Blair also clearly mentioned that there is acute shortage of staff for functional requirement as the tourist inflow is on a constant increase and the role of the Department of Tourism may also be diversified from facilitator to regulator. A statement giving the details of all the workmen, being the writ petitioners, was forwarded with request to pursue the matter with the concerned ministry for approval and sanction.

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A proposal was in place for promulgation of Andaman and Nicobar Tourist Trade Regulation which requires adequate number

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of staff. The subject workmen have provided their valuable service from the year 1993 and are continuing to render their service. All the workmen have crossed the age limit for applying for any post under the Administration and they do not have any option for employment. Sincere request was made to approve the proposal for creation of supernumerary posts in the Directorate of Tourism.

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Despite such earnest request being made highlighting the necessity for regularization of the service of the petitioners, the Union did not proceed with the matter. Inaction on the part of the Union to take further follow up steps in the matter prompted the petitioners to move this Court under its high prerogative writ jurisdiction by filing writ petition which stood disposed of by directing the Union to disclose their view in the matter within a particular time period.

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Various departments of the Union deliberated over the matter and ultimately decision was taken to regularize the service of the petitioners. The order of the Ministry of Tourism dated 21^st November, 2018 conveyed the approval of the competent authority for creation of thirty-two supernumerary posts for regularization of workmen working in the Administration subject to the conditions laid down in paragraph no. 4 of the department of expenditure OM

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dated 12^th April, 2017. The order of approval of regularization does not specify or indicate any date from which the order of regularization can be made effective from. None of the conditions mentioned in the order of regularization stipulated any particular date for regularization of the employees.

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Learned advocate representing writ petitioners has placed before this Court the order of regularization in respect of the Home Guards issued by the Administration wherein it was mentioned that the regularization will take effect from their respective initial employment in the A & N Home Guards Organization. This is where discrimination has been alleged. The only reason highlighted by the appellants for not granting similar relief to the petitioners as allowed in favour of the Home Guards is that there is no order from any Court to grant relief to the petitioners from their initial date of engagement.

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The appellants harped that it is not for the Court to insert additional benefit which is not mentioned in the order of regularization. It has been pleaded that the Court ought not to rewrite the order of regularization by the Administration by incorporating clauses therein. The appellant, however, has not been able to show any document in the order of regularization

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issued by the Union of India stipulating a particular date for giving effect to the order of regularization of the petitioners.

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It is clear that the Administration itself has incorporated new clause in the order of regularization which was not mentioned in the order of regularization issued by the Union of India. If the parent order regularizing the service of the petitioners issued by the Union did not incorporate the date of giving effect to the same, the Administration ought not to have mentioned a particular date for giving effect to the order of regularization.

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The learned Single Judge opined in clear terms that the Home Guards and the writ petitioners are similarly situated and circumstanced and the Administration ought not to discriminate the two of them.

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The only difference in respect of the Home Guards and the writ petitioners is that the order of regularization in respect of the Home Guards was issued in compliance with the direction passed by the Court; whereas, in case of the petitioners the proposal for regularization was initiated by the Administration itself and the same stood approved by the Department of the Ministry. After clearance of the Ministry was received, it was not proper for the

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Administration to fix a date for giving effect to the order of regularization.

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Had the Union intended to regularize the service of the petitioners from a particular date, then the same ought to have been mentioned in the order of regularization. The fact that no date has been mentioned and the Ministry took note of the fact that the petitioners are in service since 1993 onwards and their service is highly required for functional purpose of the Administration, accordingly, it has to be taken that the Ministry consciously did not mention any particular date for giving effect to the order of regularization. The same implies that the order of regularization will be effective on and from the initial date of engagement of the workers.

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The precedents relied upon by the appellants deal with regularization per se. The same does not lay down any ratio with regard to the date from which such regularization is to be given effect to. The same does not have any manner of application in the facts and circumstances of the instant case.

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In the case at hand, there is no issue with the regularization of the petitioners because the Department itself has approved the regularization keeping in mind the service rendered by the

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petitioners and also the functional requirement of the petitioners for smooth running of the Administration. There was no mandate from any Court in this regard. The Ministry and the Administration took the decision to regularize their service for the benefit of the public.

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The only issue is the date from which regularization is to be given effect to. The Administration being a model employer ought not to discriminate between two sets of similarly situated and circumstanced employees on the alleged ground that, in one case, regularization has been made in compliance of the order passed by the Court and, on the other, regularization has been suo moto allowed by the Department. Such stand is certainly discriminatory and cannot be allowed to perpetrate.

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The Administration cannot compel an employee to approach Court. Here, it seems that the Administration is insisting upon the employees to obtain order from the Court and only then will the benefit, allowed to the Home Guards, be given to them. The Administration ought not to take any step which will generate litigation; it should play a pro active role to resolve the issue at its end so that the matter does not reach the door step of the judiciary.

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Right to equality is a fundamental right and the employer does not have any right to adopt a partisan stand in respect of a particular group of employees and ignore the other. No valid reason has been put forth to shower benefit to only one set and not the other. No intelligible differentia has been shown to provide extra relief to the Home Guards. The same is contrary to Article 14 of the Constitution. The Court is bound to uphold the same.

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In view of the discussions made hereinabove, the Court is not inclined to interfere with the order passed by the Hon’ble Single Judge. The appeal fails and is hereby dismissed. The connected application being CAN/1/2024 is disposed of.

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The time period for complying with the order passed by the Hon’ble Single Judge is extended. The appellant shall comply with the order within a period of four weeks from date.

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Be it recorded that one of the writ petitioners namely R. Ramu being the respondent no. 29 in the appeal expired after disposal of the writ petition and before the admission of the appeal. The prayer of the heirs of the deceased employee for substitution has been allowed by the Court vide order dated 05^th August, 2024. The financial benefit which has accrued in favour of the deceased petitioner shall be passed on to his heirs being his wife R. Bhavani,

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his sons namely Shri R.C. Naidu and Shri R. Krishna and daughter

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Smt. R. Parvathy in accordance with law.

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