K.S. Sabu, Tourist Information Officer, Kochi Vs. Union of India Represented by Its Secretary to Ministry of Tourism Transport Bhavan, New Delhi and Others - Court Judgment

HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER

1. The applicant is aggrieved by the rejection of his representation for regularisation and the imminent termination from the post of Tourist Information Officer after having rendered 24 years of ad hoc service.

2. The facts in brief are that the applicant having stood first in the selection conducted by the second respondent (Annexure A-1 and A-2) was appointed as Information Assistant w.e.f. 22.12.1986 (A-3). Though he was initially appointed on ad hoc basis for 45 days with an artificial break of one day, his appointment was made continuous by order dated 22.5.1990(A-4). In the meanwhile, he appeared in the test conducted by the Staff Selection Commission for direct recruitment to the post of Information Assistant and passed the written test but he could not attend interview held on 10.8.1988 due to illness and thereafter he could not appear in the test due to upper age limit. He was also not granted age relaxation as departmental candidate as his service was only on ad hoc basis. Repeated attempts by the applicant for regularisation of service duly recommended by the department were in vain. The applicant filed this O.A challenging the impugned orders at Annexure A-15 and A-16 rejecting his request for regularisation and the order of termination of his service with immediate effect. The applicant mainly urged that he was initially selected against a regular vacancy, that he passed the examination conducted by the SSC for the very same post of Information Assistant, that he could not attend the interview due to illness, that he was not allowed to appear in the subsequent examinations due to age restriction, that he is fully qualified to be appointed to the post, that though he was initially appointed on adhoc basis, his service was continuous except for artificial breaks and that there is no break in service after 4.4.1989. he has been granted the benefits of pay revision, leave, TA etc. and that he has completed 24 years of service and that similarly situated persons are still continuing on ad hoc basis without facing termination.

3. The respondents in the reply statement stated that Tourist Information Officers are appointed through the Staff Selection Commission and by promotion in the ratio 80:20. As per the extant Recruitment Rules, Post Graduation is the essential qualification with Diploma in tourism and knowledge of any European Language other than English, experience in a travel or publicity firm or office is desirable qualification. The upper age limit is 25 years (relaxable upto 35 years for departmental candidate) They have admitted that the applicant was appointed to the post w.e.f. 22.12.1986 with one day breaks in service and w.e.f. 6.4.1989 till date continuously without any break in service. They further stated that there was no regular vacancy of Information Assistant, they could not advertise for a regular candidate for recruitment by SSC till 1998. As a special case, the applicant was granted age relaxation to appear in the examination but he failed in the examination. Regularisation without complying with the provisions of Recruitment Rules will amount to back door entry. They have also relied on the various judgments of the Apex Court and the DOPT OM dated 23.7.2001 on regularisation of services of persons appointed on ad hoc basis.

4. The applicant has filed amended O.A on 13.9.2010 and M.A. 730/2010 to accept Annexures A-18 to A-23 as additional documents

5. We have heard learned counsel for the parties and perused the documents produced before us.

6. We notice that consequent on the transfer of the regular incumbent from India Tourism Kochi to Bangalore, as the Tourist Information counter could not be kept closed, till a permanent incumbent is recruited through the SSC, temporary arrangement to man the counter at the airport became necessary. Therefore, interview was conducted from among 14 tourist guides and the applicant was appointed to the post having stood first in the selection. Though the applicant was initially appointed in 1986 on short term ad hoc basis, by order dated 4th April, 1989 (Annexure R-1), he was appointed until further orders without any break. Though this appointment was for a period not exceeding one year or till such time a regular incumbent is appointed whichever is earlier, he continued indefinitely. We do not find material to show that steps were taken by the respondents for filling up the post on regular basis. The stand taken by the respondents in the reply statement is that the post held by the applicant was not a regular post to approach the SSC. However, the case of the applicant for regularisation was taken up with the Ministry of Tourism on 12.6.90. The DOPT which was consulted in the matter directed the Tourism Ministry to advertise the vacancy to SSC for regular appointment and responsibility fixed against those who permitted the ad hoc appointment to continue without taking department's approval. The Ministry of Tourism has directed the Regional Director on 8.7.1992 to adhere to the directions of the DOPT, take action and submit report immediately. But no action was seen to have been taken by the Regional Director or the Ministry. The applicant was granted a special dispensation as one time relaxation of upper age limit and that he appeared in the examination but could not pass. The respondents have admitted that the applicant has been representing for regularization since 1990. The respondents should have taken a decision regarding his continuance in service on ad hoc basis. They took a decision after 20 years to terminate the service of the applicant that too when he repeatedly requested for regularisation. The contention of the applicantl is that he is entitled to be regularilsed taking into account the fact that he has passed the SSC test held on 15.5.1988.

7. The Apex Court considered the issues of regularisation of ad hoc employees in several judgments. In R.N. Nanjudappa Vs. T Thimmaiah and Ors (AIR 1972 SC 1767) the Court observed that regularisation is not itself a mode of recruitment and any act in the exercise of executive power of the Government cannot override rules framed under Article 309 of the Constitution. In State of Orissa Vs. Sakanti Mahapatra (AIR 1993 SC 1650) the Court has observed that asssuming that their having served for long years is a valid reason for regularisation that without anything more will not meet the requirement of the action being in public interest and what has been done under the impugned orders is to regularise the illegal entry into service as if the Rules were not in existence. In K.C. Joshi Vs. Union of India (AIR 1991 SC 284) the Apex Court observed that the adhoc appointees cannot be put on a higher pedestal over the candidates. In Dr. M.A. Haque Vs. Union of India (1993 2 SC 213) the Court held that the recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard to the rules and bypassing of the PSC are permitted, it will open a back door for illegal recruitment without limit. In the case of Dr. Arundhati A. Pargaonkar and another Vs. State of Maharashtra (1995 SC 962) the Apex Court held that a continuous service by itself does not give rise to claim for regularisation.

8. In Dr. Arundhati Ajit Paragaonkar Vs. State of Maharashtra and Others (AIR 1995 SC 962) the Apex Court inter alia referred to the judgment of the Apex court in Dr. M.A. Haque Vs. Union of India. The relevant portion is extracted below:

"We cannot lose sight of the fact that the recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and the bypassing of the Public Service Commissions are permitted, it will open a back door for illegal recruitment without limit. In fact this Court has of late, been witnessing a constant violation of the recruitment rules and a scant respect of the constitutional provisions requiring recruitment to these services through the Public Service Commission. It appears that since this Court has in some cases permitted regularisation of the irregularly recruited employees, some Governments and authorities have been increasingly resorting to irregular recruitments. The result has been that the Recruitment Rules and the Public Service Commissions have been kept in cold storage and candidate dictated by various considerations are being recruited as a matter of course."

In this case, the Apex Court was considering the challenge against the order of the Maharashtra Administrative Tribunal in TA No. 484/91. The applicant was seeking regularisation of temporary appointment which was not in accordance with the Recruitment Rules. The initial appointment of the applicant was within the purview of the PSC. The Apex Court dismissed the Appeal holding that continuous service by itself do not give rise to claim of regularisation.

9. In State of Karnataka Vs. Umadevi (2006(4)SCC 1) the Apex Court laid down the dictum in the case of regularisation of ad hoc/casual/etc. Employees. In para 53 observed as follows:

53 On e aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.; N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above , of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the service of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred 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 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.

No material is brought before us to know whether any attempt was taken to regularise the ad hoc appointees like the applicant in service within six months as directed in the above judgment.

10. The Apex Court in State of Karnataka Vs. G.V. Chandra Shekhar (2009(1)SCCL andS 834 considered the case of regularization and held that the decision in Uma Devi's case cannot be diluted violating the basis of judicial discipline.

11. The applicant further contended that persons similarly situated like the applicant are still continuing on ad hoc basis without facing termination. He has pointed out the case of one Ms K.N. Ahmed Ali who was also appointed on ad hoc basis but was permitted to continue till her age of superannuation.

12. As things stand now, it is a fact that the applicant was allowed to continue on ad hoc basis for the last 24 years without regularization despite the fact that in the office order dated 22.5.1990 it was specifically mentioned that the appointing authority reserves the right to terminate his service without notice and assiging any reason at any time. The applicant has been granted increments pay revision, leave etc. and that his service has not been continued based on the orders of the Tribunal/Court. In other words, the applicant had been working in the post all these years on ad hoc basis with all benefits without any threat of dismissal. There are more such ad hoc appointees, who continue with the Department.

13. In the facts and circumstances of the case, we are of the view that the interest of justice will be met if the impugned orders at A-15 and A-16 are kept in abeyance and the applicant is permitted to continue in the post on adhoc basis. We order accordingly.

14. The O.A is disposed of with the above directions. No costs.