Sujatha K v. Union of India and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 7TH DAY OF FEBRUARY 2017/18TH MAGHA, 1938 OP (CAT).No. 39 of 2017 () --------------------------AGAINST THE ORDER IN OA 1070/2013 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 07-10-2016 PETITIONER(S): ------------- SUJATHA K AGED 49, W/O.SADANANDA KRISHNAN RESIDING AT KONNANA HOUSE VALLIKOD P.O, MUTTIKULANGARA (VIA) PALAKKAD-676594 ## BY ADV. SRI.SIVAN MADATHIL RESPONDENT(S): -------------- 1.THE UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT MINISTRY OF FINANCE, DEPARTMENT OF REVENUE NORTH BLOCK, NEW DELHI-110001 2.THE CHIEF POST MASTER (GENERAL) THIRUVANANTHAPURAM-695033 3.THE POST MASTER GENERAL NORTHERN REGION, KOZHIKODE-673011 4.SENIOR SUPERINTENDENT OF POST OFFICES PALAKKAD DIVISION, PALAKKAD-678001 R1-R4 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 07-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 39 of 2017 () --------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ----------------------- - EXHIBIT P1-TRUE COPY OF THE OA.NO.1070/2013 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM. - EXHIBIT P2-TRUE COPY OF THE REPLY STATEMENT DATED 03/01/2014 IN OA.NO.1070/2013 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM. - EXHIBIT P3- TRUE COPY OF THE REJOINDER DATED 03/04/2014 SUBMITTED BY THE APPLICANT. - EXHIBIT P4-TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENTS. - EXHIBIT P5-TRUE COPY OF THE ADDITIONAL REJOINDER DATED 15/10/2014 SUBMITTED BY THE APPLICANT. EXHIBIT P6- TRUE COPY OF THE ORDER DATED 07/10/2016 IN OP.NO.1070/2013 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM. RESPONDENT(S)' EXHIBITS:NIL ----------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** **========================== O.P. (CAT). No.39 OF 2017 ==========================** Dated this the 7[th] day of February, 2017 ## **JUDGMENT** _Ravikumar, J._ This original petition is directed against order dated 7.10.2006 passed by the Central Administrative Tribunal, Ernakulam Bench in O.A.No.180/1070/2013. The petitioner herein was the applicant and the respondents herein were the respondents therein. The original application was filed against Annexure-A VII order dated 21.10.2013 passed by the fourth respondent whereby the fifth respondent, who was a regular incumbent, was transferred in place of the petitioner. The petitioner assailed the said order raising various grounds. It was contended that the petitioner was entitled to get regularisation in service in the light of the decision of the Hon'ble Apex Court in **Union of India and others v. Debika Guha and others [(2000) 9** **O.P.(CAT).39/2017** 2 **SCC 416].** It was further contended that the materials on record would reveal that she had worked for more than 180 days in the calender year and therefore, entitled to be absorbed in the future vacancies in the light of the dictum laid down in **Debika Guha** 's case. That apart, it was contended that the petitioner was ordered to be substituted by another provisional appointee and therefore, in the light of the decision in **Debika Guha** 's case, the respondents were not justified in resorting to such method by ousting the petitioner. In short, it was the contention that though Annexure-A VII appeared to be an order of transfer, it was virtually an order terminating the services of the petitioner. It was contended that the respondents were not justified in implementing Annexure-AVII order without considering the entitlement of the petitioner for regular absorption in service. However, the Tribunal after considering the rival contentions, relied on the decision in **Secretary, State of Karnataka and others v. Umadevi (3) and others [2006 (4) SCC 1]** to reject his contention and to hold that the petitioner got no indefeasible right to continue in **O.P.(CAT).39/2017** 3 service. Based on such conclusions and findings, the Tribunal dismissed the original application. 2. We have heard the learned counsel for the petitioner and also the learned Assistant Solicitor General. 3. The learned counsel for the petitioner reiterated the contentions unsuccessfully raised before the Tribunal, as adverted to hereinbefore. As noticed hereinbefore, the learned counsel for the petitioner relied on the decision in **Debika Guha** 's case to sustain her contentions. True that in **Umadevi** 's case rendered subsequently, the Apex Court noted that there would be nothing in the Constitution which prohibits such temporary engagement to carry out the work of the State. But, then, it was held therein that what is impermissible under the Constitution is regularisation or conferment of performance defeating the scheme of public employment. Therefore, the question is whether the decision in **Debika Guha** 's case is still available as a **O.P.(CAT).39/2017** 4 precedent for the preposition advanced by the petitioner in the light of the decision of the Apex Court in **Umadevi** 's case. The circumstances that constrained the department to go on with provisional appointment was also taken into account by the Tribunal. It is evident that, as per the impugned order, even while holding that the department could resort to temporary engagement to carry out its work, the Tribunal had specifically observed that such appointment could not ultimately defeat the scheme of public employment. True that the petitioner had worked as BPM, Vallikode, Palakad with effect from 1.6.2012 to 8.6.2013 intermittently in different leave spells. In fact, she had worked unto that period as a stop gap arrangement till regular selection is made. The question is whether such engagement as stop gap arrangement would confer any right on the petitioner for permanence. When the learned counsel for the petitioner contends that even such service rendered by the petitioner as a substitute could not be ignored for the purpose of considering her claim for permanence, the learned counsel for the respondents contended that **O.P.(CAT).39/2017** 5 the said claim is bereft of any basis in the light of the decision in **Umadevi's** case. 4. It is to be noted in the contextual situation that the original application was filed mainly challenging Annexure-AVII order whereby the fifth respondent was transferred to the post office where the petitioner was working as a substitute. The contention of the petitioner was that such a transfer would definitely defeat her claim for regular absorption and in such circumstances, Annexure-A VII order ought not have been implemented before considering her claim for regular absorption in the department. We are afraid the said contention of the petitioner could not be sustained in the light of the decision in **Umadevi** 's case. In fact, it is to get over the legal impediment for regularisation that the petitioner is relying on the decision of the Apex Court in **Debika Guha** 's case to contend that since she had worked for a period exceeding 180 days, she is entitled to get regularisation. We have already observed that the question is **O.P.(CAT).39/2017** 6 whether the claim of the petitioner in regularisation in the light of the decision in **Debika Guha** 's case could be upheld in the light of the decision in **Umadevi's** case. In the contextual situation, it is relevant to refer to paragraphs 53 and 54 of the decision in **Umadevi** case. Virtually, as per the said decision, the Apex Court deprecated the practice of engaging persons in violation of the constitutional mandate and resorting to temporary engagement and regularisation as a method of appointment. Paragraph 53 therein reads thus:- “..........The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily **O.P.(CAT).39/2017** 7 wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. The Apex Court went on to hold in paragraph 54 thus:- It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand . denuded of their status as precedent 5. Thus, a careful scrutiny of the decision in **Umadevi's** case would reveal that in the light of the dictum laid down therein, the decision in **Debika Guha** 's case got denuded of its status as a precedence. When that be the case, the petitioner is not justified in relying on the decision in **Debika Guha** 's case which by the decision in **Umadevi's** case lost its precedential value. Therefore, the contention of the petitioner that she has worked as substitute for 180 **O.P.(CAT).39/2017** 8 days in a continuous period of 365 days and therefore, entitled to regularisation, cannot be accepted. The right of the employer to transfer its employee from one place to another is recognised in service jurisprudence. The petitioner who worked in a stop gap arrangement during the aforesaid period got no right to challenge the transfer and posting of a regular employee by the department in her place. In fact, the petitioner got no case that she is entitled to get regularisation in view of the decision in **Umadevi** 's case (supra) and in fact, in the light of the same, she could not claim any right, whatsoever, for continuance in service. When it is evident that the petitioner has got absolutely no indefeasible right to continue in the department, the transfer of the fifth respondent to the place where the petitioner was working cannot be said to be a mala fide exercise of power. The petitioner seeks for quashment of Ext.P6 order passed by the Tribunal. There can be no doubt with respect to the position that this Court got power only to make a judicial review of the order **O.P.(CAT).39/2017** 9 passed by the Tribunal. There is no manifest injustice flowing from the impugned order and after going through the order, we do not find any illegality as well in the order. Above all, the order is in conformity with the ratio of the decision in **Umadevi** 's case (supra). In such circumstances, this original petition is liable to fail and accordingly, it is dismissed. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** **spc/** **O.P.(CAT).39/2017** 10 **C.T. RAVIKUMAR, J.** **O.P.(CAT).39/2017** 11 **JUDGMENT September, 2010**