Judgment · High Court · 2012

Writ appeal No. 139/2011 arises out of WP(C) No. 99/2006 while W 2. rit Appeal No. 140/2011 arises out of WP(C) No. 118/2006, both disposed of by th e common order dated 29.04.2009. WP(C) No. 4061/2009 was filed subsequent to the aforesaid order. However, as the subject matter of WP(C) No. 4061/2009 is ident ical to the subject matter of the 2 (two) writ appeals, the same has been taken up for consideration along with the writ appeals.

#3. The facts of the case may be briefly noted. The respondents in the 2 (two) appeals were petitioners in the r 4. elated writ petitions. All the petitioners are graduates having B.Ed. degree. An advertisement was issued by the Indian Oil Corporation (Assam Oil Division) (Co rporation hereafter) which was published in the news paper (cid:28)Assam Tribune (cid:29) on 20 .10.1997 inviting applications from candidates duly registered with the employme nt exchange for the post of teacher, primary school (English medium). In the adv ertisement, the pay scale of the post was indicated as Rs.2366 - Rs.4521 plus ot her allowances as admissible under the Rules. It was also indicated that the app ointed teachers would be entitled to Corporation’s housing accommodation, C.P.F. , Group Insurance, LTC, Gratuity, medical facilities, Productivity Linked Bonus, Group Savings Linked Insurance etc. as per Corporation’s Rules. Although in the advertisement the number of vacancies was indicated as two, but by the time the selection was held, another post fell vacant and accordingly, the selection was conducted for three posts.

#5. The writ petitioners were called to appear in the written test o n 27.11.1997. Thereafter, by letter dated 28.11.1997 issued by the Chief General Manager of the Corporation, they were asked to report on 12.12.1997 at 7:00 am for class room teaching test and interview and to bring the originals of the rel evant certificates. Accordingly, the petitioners appeared for class room teachin g test and interview on 12.12.1997. As they came out successful in the selection , the petitioners were required to undergo medical test on 26.12.1997. On being cleared in the medical test, the petitioners were selected. While Smti. Amina Da s Gogoi and Smti. Subrata Borah Chowlek were selected against the two advertised posts, Smti. Sultana Begum Borah was selected against the third post which fell vacant after the advertisement was issued. The three petitioners were selected out of 19 candidates who participated in the selection.

#6. The petitioners were appointed on 01.01.1998 and 02.01.1998. The ir initial appointment was for less than 45 days. However, the appointments were continued by issuance of similar appointment orders from time to time with arti ficial breaks of 1 or 2 days in between. In the meanwhile, the monthly pay of th e petitioners was raised up to Rs.5400 per month.

#7. Petitioners submitted representations from time to time with the grievance that their appointments were not made as per the advertisement in as much as they were appointed for a period of less than 45 days which was continue d with artificial breaks of 1 or 2 days, which they contended was unfair. They, therefore, urged the authorities of the corporation to regularize them in their service in terms of the advertisement. According to the petitioners, whenever th ey had approached the authorities of the corporation with their grievance, they were assured that the needful would be done to redress their grievance. However, nothing materialized.

#8. Petitioners contended that three similarly situated persons work ing in the corporation, namely, Sri Dipsekhar Borah, Sri Pradip Kumar Barthakur and Smti. Manju Baruah were also initially appointed on 45 days basis like the p etitioners. However, the said 3 persons were regularized in their services on 21 .01.1999 and 31.01.1999. In such circumstances, petitioners submitted another re presentation praying for similar treatment. When Smti. Subrata Bora Chowlek prayed for maternity leave in Oc 9. tober, 2003, her prayer was rejected by the authority on the ground that such le ave was applicable only to regular employees.

#10. Further representations were made by the petitioners on 03.08.20 04 seeking similar service benefits like that of other regular employees. The Ch ief Human Resource Manager of the corporation by his letter dated 25.08.2004 inf ormed the petitioners that sincere efforts were being made to regularize the ser vice. It was further stated that in the meanwhile the possibility of extending c ertain facilities to the petitioners and their dependents were being looked into . However, nothing happened in the matter, compelling Smti. Subrata Bora Chowlek and Smti. Anima Das Gogoi to file the two writ petitions seeking direction to t he authorities of the corporation to regularize their service and/or to treat th em as regular employees of the corporation w.e.f. the dates of their initial app ointment and to grant all consequential benefits.

#11. The said two writ petitions were resisted by the appellants/resp ondents by filing counter affidavit. The stand taken was that the petitioners we re appointed to work as teachers on temporary basis in the school run by the Ass am Oil Division of the corporation. It was not a regular department of the corpo ration though it was admitted that the petitioners were selected for appointment as primary school teacher pursuant to the advertisement dated 20.10.1997. The c orporation further stated that the school in which the petitioners were appointe d had to be closed down in the year 2004 because of decline in enrolment. Howeve r, the corporation stated that as it had a sense of responsibility towards the t eachers of the school including the petitioners, the corporation re-deployed the m as temporary Jr. Clerk-cum-Typist in other departments of the corporation in M ay, 2006. In their counter affidavit, the corporation stated that it was concern ed about the case of the petitioners and to ensure that the petitioners did not face hardship, they were redeployed and temporarily appointed as above. The stan d of the corporation is that it has a sense of responsibility towards of its emp loyees and is always desirous to provide better facilities. Corporation has made efforts to be fair to the petitioners and therefore tried to provide them whate ver was possible, including processing by the management of Assam Oil Division t owards any possible regularization of the service of the petitioners.

#12. The petitioners in their rejoinder affidavit contended that the authority who had filed the counter namely Chief Manager (Marketing Operation) w as not competent as the competent authority is the Chief Human Resource Manager under whom the petitioners are serving. Petitioners denied the contention that t he school was not an integral part of the corporation as under the transfer poli cy of the corporation, school teachers could be transferred to other departments of the corporation. They also pointed out that as per the appointment order the y were liable to be transferred to any place in India in the service of the corp oration which shows that they were part of the parent organization. Learned Single Judge after examination of the matter in detail a 13. nd on perusal of the relevant record, while allowing the two writ petitions in WP(C) No. 99/2006 and WP(C) No. 118/2006, directed the corporation to treat the two petitioners as regularly appointed w.e.f. the initial date of appointment wi th all consequential service benefits including notional fixation of pay from th e initial date of appointment and arrear salary w.e.f. 05.01.2006 i.e. the date of the filing the writ petition, clarifying that the appointment of the two peti tioners should be deemed to be the appointments as envisaged in the advertisemen t dated 20.10.1997 with all consequential benefits.

#14. rit appeals. Aggrieved, the corporation and its officers have filed the two w

#15. We have heard Mr. K. N. Choudhury, the learned Senior Counsel as sisted by Mr. R. Dubey, learned counsel for the appellants in the two writ appea ls and for the respondents in WP(C) No. 4061/2009. We have also heard Mr. C. Bar uah, learned Senior Counsel assisted by Mr. R. K. Dutta, learned counsel for the respondents in the two writ appeals as well as Mr. S. K. Talukdar, learned coun sel appearing for the petitioner in WP(C) No. 4061/2009.

#16. Mr. Choudhury, learned Senior Counsel appearing for the corporat ion submits that learned Single Judge had committed an error in directing the co rporation to treat the two writ petitioners as regularly appointed w.e.f. their initial dates of appointment with all consequential service benefits. He has sub mitted that the petitioners were temporarily appointed as primary school teacher pursuant to the advertisement dated 20.10.1997. Because of low enrolment, the s chool had to be closed down in the year 2004. On humanitarian ground, to ensure that the petitioners did not suffer hardship, the corporation took a considered view and redeployed the petitioners in the regular department of the corporation by temporarily appointing them as Jr. Clerk-cum-Typist. In such circumstances, the finding of the learned Single Judge to treat the petitioners as being in reg ular employment in the said post of Jr. Clerk-cum-Typist from the date of their appointment as teacher was not justified and contrary to settled legal principle s. Counsels for the writ petitioners on the other hand vehemently o 17. pposed the submission of the learned counsel for the corporation and submits tha t the petitioners were unfairly treated by the corporation. Though they were sel ected following a due selection process, they were most illegally appointed for short periods at a time with artificial breaks of one or two days in between. Th e school was an integral part of the corporation and, therefore, when it was clo sed down, the corporation re-adjusted them in other departments but in the same temporary status, which was again very unfair. Judgment of the learned Single Ju dge has to be seen and understood in the contextual facts and, therefore, the di rection given should not be disturbed.

#18. The submissions made have been considered. The facts of the case have already been noticed above and theref 19. ore, would not require further re-reiteration. While there may be some merit in the submission of learned counsel for the corporation that the direction of the learned Single Judge to the corporation to treat the petitioners in their presen t employment as regularly appointed w.e.f. from the initial date of appointment, may not be justified but at the same time, the Court cannot also overlook the f actual context based on which the aforesaid direction was issued. The advertisement dated 20.10.1997 did not specify or indicate t 20. hat the appointments would be temporary and limited to a period of less than 45 days at a time with artificial breaks of one or two days in between. In absence of such stipulation, the corporation could not have imposed such appointment on the petitioners. The fact that the petitioners had accepted such appointment wou ld not absolve the corporation of resorting to such unfair deal with the petitio ners by taking advantage of its superior bargaining position. As already noticed above, when the school was closed down, the petitioners were adjusted in other departments of the corporation but the nature of appointment was continued. The petitioners were selected for appointment as teachers, primary schoo Learned Single Judge examined the matter in great detail and per 21. used the relevant record. On due consideration, learned Single Judge held as fol lows:- (cid:28) 20. l (English medium). As per the advertisement, the selected candidates were to be appointed in the Time Scale of pay of Rs. 2366-4521/- plus other allowances as admissible under existing rules. Even the total emoluments at the minimum of the scale was indicated as Rs. 3900/-. As noted above, it was also indicated that t he selected candidates would be entitled to all other service benefits of the Co rporation after the appointment. 21. The records produced by Mr. Sarma, produced by Mr. Sarma, learned counse l for the respondent-Corporation have revealed that the petitioners were selecte d for such appointment and the selection was conducted strictly in conformity wi th the stipulations made in the advertisement. Nowhere in the records/two files produced by Mr. Sarma, learned counsel representing the respondent-Corporation, there is any indication as to what led to the situation in which the petitioners were appointed in the manner and method indicated above. If the petitioners had been appointed on regular basis pursuant to the advertisement and selection, ev en on closure of the school, their service would have been continued in some oth er departments, as has been done even in case of temporary appointments with the consequential benefits. It is in this context, the petitioners have referred to Annexure-P appointment order dated 27.06.1994 annexed to the reply affidavit to show as to how even a school teacher is liable to be transferred to Section/Pla nt/Department/Unit of the Corporation. Although the respondents have contended that the school in question is n 22. ot an integral part of the Corporation, but Mr. Sarma, learned counsel represent ing the respondent-Corporation fairly submitted that such stand on the part of t he respondent-Corporation may not be sustainable. The petitioners have indicated some other schools, which are the integral parts of the Corporation. Even other wise also, if the school in question was not an integral part of the Corporation , there was no question of issuing the advertisement and making the selection by Corporation itself. The very fact that the services of the petitioners have bee n continuing in some other departments and in some other capacity will go to sho w that the school was an integral part of the Corporation. Thus, the corporation cannot obviate itself from the liability to maintain the petitioners even after discontinuation of the school. As to what consequence would follow after discon tinuation of the school is not the issue in hand, but the issue is as to whether the petitioners have received fair treatment at the hands of the respondent-Cor poration and as to whether there has been violation of Article 14 and 16 of the Constitution of India. The petitioners are qualified candidates. As noticed above, they are BA 23. and B.Ed. degree holders. They fulfilled the eligibility criteria laid down in t he advertisement. The advertisement was for regular appointment and had never in dicated that the petitioners might find themselves in the kind of situation in w hich they found themselves, now with the issuance of the engagement advice appoi nting them for less than 45 days with time to time extension by various orders w ith the artificial break for one or two days. The petitioners were the experienc ed hands and accordingly, they responded to the advertisement leading incorporat ing the promises made therein. However, the respondents acted contrary to such p romises and extracted the services of the petitioners in exploitative terms. The petitioners being at the receiving ends could not do anything in the matter exc ept raising time to time protest before the authorities of the Corporation.

#24. The Chief H. R. Manager of the Corporation by his aforementioned Annexur e-9 letter dated 25.08.2004 stated that the efforts are being made to regularize the services of the petitioners since the year 2001 and such efforts were still continuing. It was also conveyed that the possibility of extending certain fac ilities to the petitioners were being looked into. Thus, the respondent-Corporat ion was not oblivious of the illegality meted out to the petitioners. & & & & & & & & & & & &.

#34. In the instant case, the respondent-Corporation made out the promises to the petitioners for consideration of their case for appointment as primary scho ol teacher. Such promise was made out by the advertisement dated 20.10.1997 inco rporating the conditions of appointment. The petitioners responded to the said p romises made out and did their best to get the selection. They were selected pur suant to all the selections including the written test conducted by the authorit ies of the respondent-Corporation. At no stage, there was even any whisper that they might be appointed on temporary basis and that the posts were temporary.

#35. Although in the counter affidavit, a feeble attempt has been made to sho w that the requisition placed before the Employment Exchange indicated that the posts were temporary in nature, but the same is wholly unsustainable. In the adv ertisement, there was no indication that the posts were temporary. Even otherwis e also, in the normal circumstances, the employer either in advertisement or in the offer of appointment indicates the posts as temporary. That by itself cannot be decisive of the fact that the post is temporary and/or for a limited duratio n. It is not the case of the respondent-Corporation that since the posts were te mporary and got abolished by the time the petitioners were so appointed they cou ld not be appointed against the posts. Merely because, the posts were described as temporary, it did not give license to the respondent-Corporation to deal with the case of the petitioners as per their whims and caprices. It is in this cont ext, they were directed to produce the relevant file, in which the decision for appointment of the petitioners in the manner and method in which they were appoi nted, which the respondents failed to comply with. They could not produce any su ch file which has led to the irresistible conclusion that the treatment meted ou t to the petitioners is nothing but exploitation requiring interference of this Court.

#36. The particular plea of the petitioners referred to in paragraph 11 of th e writ petition that the services of the petitioners named therein were also app ointed like that of the petitioners have been regularized in no time has not bee n denied by the respondents. However, their plea is that the said persons were a ppointed in some other departments/units. Merely because the said persons were a ppointed in some other units, that by itself will not justify differential appro ach of the respondents in dealing with the case of the petitioners. The responde nts with their eyes wide open made out the promises to the petitioners for regul ar appointment and conducted the selection on that basis. At no point of time, t hey were intimated that their appointment shall be on less than 45 days basis an d that they would also not be entitled to service benefits as promised in the ad vertisement.

#37. The petitioners being at the receiving end and in this era of unemployme nt, had no other option than to accept the engagement offered to them which need less to say clearly in exploitative terms. It is not that the petitioners gladly accepted the engagement, but they made time to time representation in response to which the authority of the respondent-Corporation even admitted that the effo rts had been made since 2001 to regularize the services of the petitioners. Once the petitioners were tested for regular appointment and were selected for the s ame, merely by extracting their services in exploitative terms and merely becaus e the petitioners are pitted against the mighty administration of the respondent -Corporation, the respondents cannot derive the advantageous position from that kind of situation. The Court is bound to interfere with such exploitation.

#38. Needless to say that the jurisdiction of the High Court under Article 22 6 of the Constitution of India is equitable and discretionary power in that Arti cle is exercised by the High Court (cid:28)to reach injustice wherever it is found (cid:29). Th e facts of the present case deserve interference of this Court in exercise of eq uitable jurisdiction under Article 226 of the Constitution of India. The respond ent-Corporation instead of behaving like a model employer has exploited the serv ices of the petitioners in exploitative terms, which is not expected to a model employer. The exploitation meted out to the petitioners stares on the face of it . & & & & & &

#40. For all the aforesaid reasons, the writ petitions are allowed directing the respondent-Corporation to treat the petitioners as regularly appointed with effect from the initial date of appointment with all consequential service benef its including notional fixation of pay from the initial date of appointment and arrear salary with effect from 05.01.2006, i.e. the date of filing the writ peti tions. In other words, the appointments of the petitioners shall be deemed to be the one as envisaged in the advertisement dated 20.10.1997 with all consequenti al benefits indicated above, taking the services of the petitioners to be regula r in the time scale of pay with other service benefits, as indicated in the said advertisement dated 20.10.1997. The respondent-Corporation shall provide the pe titioners with all consequential service benefits including their engagement/abs orption/transfer etc. (cid:29)

#22. While generally we are in agreement with the views expressed by the learned Single Judge, the fact still remains that in so far the appointment of the petitioners in the post of Jr. Clerk-cum-Typist is concerned, there was n o selection though the petitioners were selected for the post of primary school teacher.

#23. In view of above and considering the totality of the facts and c ircumstances of the case, we are of the view that it would be in the interest of justice if the direction of the learned Single Judge is modified to the extent of directing the corporation to consider the case of the petitioners for treatin g them as in regular employment of the corporation in accordance with law. Such a direction would be consistent with the stand of the corporation itself as take n in the counter affidavit that it is conscious of its responsibilities towards its employees and that it has made all efforts to deal with the case of the peti tioners in a fair manner including processing of their case towards possible reg ularization. Such consideration shall be carried out within a period of 4 (four) months from today.

#24. WP(C) No. 4061/2009 shall also stand disposed of in the above terms.

#25. er, there shall be no order as to cost. Writ appeals and the writ petition accordingly stand disposed of. Howev