THE LT.GOVERNOR AND ORS. vs SHRI.P.KATHIRESAN
- Court
- Calcutta High Court
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
[CIRCUIT BENCH AT PORT BLAIR]
PRESENT: THE HON'BLE JUSTICE AMRITA SINHA
AND
THE HON'BLE JUSTICE BISWAROOP CHOWDHURY
WP.CT/53/2025
HON’BLE LIEUTENANT GOVERNOR,
A & N ISLANDS AND OTHERS … PETITIONERS
VS.
SHRI P. KATHIRESAN … RESPONDENT
For the petitioners : Mr. Rakesh Kumar
For the respondent : Mr. Gopala Binnu Kumar
Ms. Vinita Devi
Heard and Reserved on : August 28, 2026
Judgment delivered on : September 03, 2026
Judgment uploaded on : September 03, 2026
AMRITA SINHA, J.
rd
1. The order dated 23 July, 2025 passed by the learned Central
Administrative Tribunal in O.A. No. 351/133/2016(AN) is impugned
in the instant writ petition.
2. The issues framed by the learned Tribunal for adjudication
were:-
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(i) Whether the applicant has requisite qualification for
regularization of his services?
(ii) Whether the nature of applicant’s appointment makes
him eligible for regularization?
3. By the impugned order, the learned Tribunal was pleased to
direct the petitioners to regularize the service of the respondent from
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25 September, 1996, the date he was engaged initially as Daily
Rated Mazdoor (DRM) in the post of Multi Tasking Staff (MTS) with
consequential notational benefits, without payment of back wages, if
any, within a stipulated period of time.
4. The instant writ petition at the instance of the authorities is
primarily on the ground that the respondent was engaged not
against any regular sanctioned post of the department, but against
temporary capacities on part time and contract basis. Such type of
engagement ought not to be directed to be regularized.
5. The impugned order is contrary to the law laid down by the
Hon’ble Supreme Court in the matter of Secretary, State of
Karnataka and Others vs. Umadevi (3) and Others reported in
(2006) 4 SCC 1.
6. The respondent does not possess the requisite qualification for
appointment in the post of MTS as per the recruitment rules. There
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are several similarly placed staff who may seek similar relief if the
prayer of the respondent seeking regularization is allowed.
7. In support of such submission, learned advocate representing
the petitioners relies on the judgment delivered by the Hon’ble
Supreme Court in the matter of Umadevi (supra) and the judgment
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delivered by the Hon’ble Division Bench of this Court on 20
December, 2021 in WP.CT/51/2020 in the matter of The
Lieutenant Governor and others vs. P. Kathiresan and another
(2021:CHC-PB:104-DB).
8. Reliance has also been placed on the judgment delivered by
the Hon’ble Supreme Court in the matter of Jagdish Prasad and
Others vs. P.M. Manoj Kumar and Others reported in (2026) SCC
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OnLine SC 970 . The petitioners also rely on the order dated 19
November, 2019 passed by the Hon’ble Supreme Court in Civil
Appeal Nos. 2155-2156/2010 in the matter of Tejeswara Rao
and Others vs. Union of India and Others .
9. The petitioners pray for setting aside the impugned order of
the learned Tribunal.
10. Per contra, learned counsel representing the respondent-staff
opposes the submissions and prayer of the petitioners. It has been
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submitted that the respondent was initially engaged on 25
September, 1996 and since then he is made to work by the
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authority on regular basis. The service rendered by the respondent
is of perennial in nature and the respondent ought not to be
exploited without providing the consequential service benefits.
11. It has been submitted that when the respondent was engaged
as DRM, he possessed the requisite eligibility for such engagement.
The post of MTS was not available at that point of time. It is only
later on, after the recruitment rules for the post of MTS was
promulgated, the requirement of possessing educational
qualification of class –X pass came into force.
12. The issue of not possessing the requisite qualification for
regularization of the respondent in the post of MTS was decided by
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the learned Tribunal on 27 February, 2023 in the Original
Application filed by the respondent. The learned Tribunal, upon
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relying on the judgment passed by the Hon’ble High Court on 20
September, 2021, in WP.CT/51/2020 clearly held that the
educational qualification required at the relevant time when the staff
is engaged needs to be considered for the purpose of considering the
claim of regularization and not the higher educational qualification
which was introduced subsequent to his initial date of engagement.
The learned Tribunal was pleased to direct the authority to re-
examine his claim for regularization of service in line with the
observation made by the Hon’ble High Court in WP.CT/51/2020.
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13. The order dated 27 February, 2023 was assailed by the
respondent-staff before the Hon’ble High Court by filing
WP.CT/61/2023. The said writ petition stood disposed of by a
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coordinate Bench of this Court on 23 November, 2023 directing the
learned Tribunal to decide the issue with regard to the nature of
employment of the respondent within a stipulated time period.
14. It has been argued that the issue of not possessing requisite
qualification for being regularized as MTS, cannot be raked up all
over again to thwart the claim of regularization of the respondent.
15. Specific case of the respondent is that he was engaged in
September 1996 on daily rated basis for a period of three months
and after that his service stood extended regularly. He was
thereafter engaged on contractual basis on a consolidated pay till
the implementation of the recruitment rules in the year 2012. On
consideration of his representation seeking reinstatement as
Chowkidar, fresh engagement letter was issued in his favour in
January, 2014 with a consolidated pay. Since then, the respondent
is still in service and is pursuing his claim for regularization since
2012.
16. Learned advocate representing the respondent submits that
the engagement of the respondent cannot be said to be illegal in any
manner. Service of the respondent stood extended by the authority
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only after being satisfied with his performance. Not regularizing his
service, despite rendering dedicated service to the Administration,
will result in gross injustice to him.
17. Prayer has been made by the respondent to dismiss the writ
petition by affirming the order passed by the learned Tribunal. In
support of such prayer, learned advocate for the respondent relies
on the judgment delivered by the Hon’ble Supreme Court in the
matter of :
(i) Jaggo vs. Union of India reported in (2024) SCC
OnLine SC 3826 .
(ii) Vinod Kumar and Others vs. Union of India reported
in 2024 INSC 332 .
(iii) Union of India Rep by Government of Puducherry
and Another vs. K. Velajagan and Others reported in
(2025) SCC OnLine SC 837 .
(iv) Dharam Singh and Others vs. State of UP reported in
(2025) SCC OnLine SC 1735 .
(v) Bhola Nath vs. State of Jharkhand and Others
reported in (2026) SCC OnLine SC 129 .
(vi) Mohammad Sagir and Others vs. Nagar Nigam
Kanpur reported in (2026) SCC OnLine SC 473 .
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(vii) Sukhendu Bhattacharjee and Others vs. State of
Assam and Others reported in (2026) SCC OnLine SC
909 .
18. We have heard and considered the rival submissions made on
behalf of both the parties and have perused the materials on record.
19. It appears that the respondent is persistently pursuing his
claim for regularization since 2012. He was continuously serving as
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Chowkidar on and from his initial date of engagement on 25
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September, 1996 till 29 February, 2012. He was not allowed to
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work on and from 01 March, 2012, but after agitation was made by
similarly placed staff, the authority restored service of the
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respondent with effect from 05 March, 2012 by issuing formal
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order on 13 March, 2012. He was again terminated from service on
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11 April, 2012.
20. The respondent claims that even though the engagement was
contractual and time bound, but the respondent was made to work
in the same manner as that of a regular employee. The respondent
further claims that he was made to work for more than twelve hours
a day despite, at times, issuing engagement letter for service on part
time basis. He was also made to work on public holidays and other
executive holidays, but no payment was made for his service during
the holidays. When the respondent was engaged as Chowkidar in
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the hostel campus of the Teachers’ Training Institute, his duty
hours were from 02.00 PM to 10.00 PM. He also worked in the girls’
hostel and campus.
21. The service book of the respondent was prepared by the
authority mentioning his designation as Chowkidar on contractual
engagement on consolidated pay and his educational qualification
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was mentioned as IX standard. His medical examination was also
conducted and he was found medically fit for duty. His service book
records the period of earned leave. Despite being a contractual staff,
the CCS Leave Rules, 1972 was invoked for maintaining and
granting earned leave to the respondent. He was granted overtime
allowances and also paid bonus.
22. In 2009, the respondent sought for regularization of service or
increase in his monthly consolidated pay of Rs. 3,000/- per month
which he was receiving. His prayer remained unheeded by the
authority.
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23. His service stood terminated on and from 01 March, 2012
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but he was reinstated on 05 March, 2012 and again terminated on
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11 April, 2012. Challenging his termination, the respondent filed
Original Application before the learned Tribunal being O.A. No.
351/107/AN/2012. During pendency of the Original Application,
the authority engaged the respondent as DRM on a consolidated pay
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of Rs. 5,000/- per month. The engagement letter clearly stipulated
that DRM engagement will not give rise to any claim/right in future
for regular/contract/part time appointment under the
Administration.
24. The recruitment rules for engagement to the post of
Chowkidar which was prevailing at the time of his initial
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engagement required the essential qualification of passing VIII
standard from a recognised school/institute. The respondent
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possesses the educational qualification of IX standard. The
Administration published the recruitment rules for the post of MTS
in the Department of Education on 28th June, 2012. It is under the
new recruitment rules that the educational qualification to pass
secondary school examination from a government recognised board
or institution was made essential.
25. Admittedly, the respondent does not have the minimum
educational qualification for engagement as MTS under the
recruitment rules, 2012. It is, however, noticed that the rules
contain a power to relax the provision of the rules to any class or
category of persons. The power to relax lies with the Lieutenant
Governor, Administrator, A & N Islands.
26. The learned Tribunal, despite noticing, that the respondent
was serving in the post of Chowkidar, was pleased to direct
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appointment of the respondent as MTS. For implementing the order
passed by the learned Tribunal, the authority ought to have invoked
the provision for relaxation which is provided in the recruitment
rules.
27. It is not that there is no scope for relaxation of the provisions
of the rules. Opportunity of relaxation has been provided only for
retaining experienced staff in service who may not possess all the
requisite qualifications and criteria prescribed in the rules. The
same implies that, even though the age limit and the other
qualifications for recruitment have been notified, the same may not
be mandatorily applicable and the same may be relaxed depending
upon the facts and circumstances of a subject case.
28. Not possessing the requisite educational qualification for
appointment as MTS was considered by the Court in the writ
petition filed by the respondent in WP.CT/61/2023. In the order
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dated 29 November, 2023 passed in the said matter, the Court
took note of the submission made by the learned counsel
representing the Administration that in view of the recent
development with regard to regularization of DRM/Casual
employees, the staff may apply for regularization under the scheme
to be framed by the Administration.
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29. The Court also took note of the assurance and undertaking
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given before the Hon’ble Supreme Court on 14 August, 2023 in
Civil Appeal No. 5014 of 2023 (Admiral D.K. Joshi, the Hon’ble
Lieutenant Governor, A & N Islands and another vs. Andaman
Sarvajanik Nirman Vibhag Mazdoor Sangh and another) that
upon fulfillment of the necessary qualification prescribed in the
recruitment rules prevalent at the time of initial appointment would
continue as part of the scheme for regularization. Upon such
consideration, the Court was of the opinion that the minimum
qualification criterion of the respondent is fulfilled. The Court found
the respondent to be eligible for consideration for regularization as
per the scheme to be framed by the Administration. The Court
disposed of the writ petition by directing the Tribunal to decide the
nature of his employment.
30. The opinion formed by the Court holding the respondent to be
eligible for regularization, despite not possessing the educational
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qualification of X standard, was accepted by the authority and the
order of this Court was not challenged before any superior forum.
The order of the Court, accordingly, attained finality. Relying on
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such opinion, the Tribunal passed order on 27 February, 2023
that the educational qualification required at the relevant time when
the staff is engaged needs to be considered for the purpose of
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considering the claim for regularization and not the higher
qualification introduced subsequently.
31. We are of the considered opinion that lack of minimum
educational qualification required for consideration of the prayer for
regularization as MTS under the recruitment rules, 2012 cannot be
a valid ground to oppose the prayer for regularization of the
respondent. It has also to be kept in mind that, the designation MTS
is a mere re-designation of the Group –C, non ministerial, non
gazetted post which was prevailing prior to implementation of the
recruitment rules, 2012.
32. The next ground for opposing the prayer for regularization is
that the respondent was not engaged against any sanctioned post.
The very fact that the authority maintained a service book of the
staff and credited leave to him by invoking the CCS Rules, 1972
clearly implies that the nature of service provided by the respondent
was akin to a regular staff engaged in a sanctioned post. Extracting
regular service from an employee, by not providing the
consequential benefits in respect of the subject post, is a form of
exploitation which is a bar under the Constitution.
33. There is no allegation with regard to the performance of the
respondent. It is only on technical reasons that the authority
refuses to grant appropriate relief to the respondent. The
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submission of opening flood gates, if the prayer of the respondent is
allowed, ought not to be a reason to provide relief to a litigant if he is
entitled to the same under the provisions of law.
34. The learned Tribunal took note of the engagement of the
respondent and has set out a tabular chat in the impugned order
wherefrom it appears that, initially the respondent was engaged on
daily rated basis, thereafter on part time basis and also on
contractual basis. The Tribunal took note of the weak barging
position of the respondent. It was noted that though the engagement
letter of the respondent disclosed about part time contract, but he
was actually made to work full time. The Tribunal came to a
conclusive finding that the respondent continued to be engaged on
full time basis.
35. The order passed by the Hon’ble Supreme Court in the matter
of Tejeswara Rao (supra) deals with the issue of promotion. The
same does not relate to regularization. The rules that were
considered to arrive at the subject finding is not applicable in the
present case. The facts of present case also do not fit in to the facts
of the referred case. Thus, reliance on Tejeswara Rao (supra) does
not come to the aid of the petitioners.
36. Jagdish Prasad (supra) relied upon by the petitioners also
does not apply in the facts and circumstances of the present case.
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The cited case deals with the issue of promotion and the ratio laid
down in the said case cannot be made applicable in the facts and
circumstances of the instant case.
37. In Jaggo (supra) the Hon’ble Supreme Court categorically laid
down that the nature of the work performed rather than the label
assigned to the worker, should determine the employment status
and their corresponding rights and benefits. The Court highlighted
the judiciary’s role in rectifying misclassifications and to ensure that
the workers receive fair treatment. The Court held that the
government departments should lead by examples in providing fair
and stable employment.
38. The Court was of the opinion that engaging workers on
temporary basis for extended periods, especially when their roles are
integral to the organization’s functioning, not only contravenes
international labour standards but also exposes the organization to
legal challenges and undermines employee morale. By ensuring fair
employment practices, government institutions can reduce the
burden of unnecessary litigation, promote job security and uphold
the principle of justice and fairness. The Court directed
regularization of service.
39. In Vinod Kumar (supra) the Hon’ble Supreme Court held that
the essence of employment and the right thereof cannot be
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determined by the initial terms of appointment. The continuous
service of the employees performing duties indistinguishable from
those in permanent posts, and their selection through a process
that mirrors regular recruitment, constitute a substantive departure
from the temporary and scheme specific nature of their initial
engagement. Reliance on procedural formalities at the outset cannot
be used to perpetually deny substantive rights that have accrued
over a considerable period through continuous service. The Court
directed regularization of the employees.
40. In Velajagan (supra), the Hon’ble Supreme Court reiterated
the proposition laid down in Shripal (supra) that Umadevi (supra)
cannot be used as a shield to justify exploitative engagement
persisting for years without the employer undertaking legitimate
recruitment process to deny relief of regularization.
41. In Dharam Singh (supra), the Hon’ble Supreme Court
observed that the practices of long term extraction of regular labour
under temporary labels corrodes confidence in public administration
and offends the promise of equal protection. The observations in
Shripal (supra) and Velajagan (supra) were reiterated once again.
The Court directed regularization and creation of supernumerary
posts along with pay protection. A compliance affidavit was directed
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to be filed by the respondents for ensuring compliance of the
direction passed by the Court.
42. In Bhola Nath (supra), the Hon’ble Supreme Court directed
regularization of the contractual employees. The Court concluded
that the respondent-State is not justified in continuing contractual
employees on sanctioned vacant posts for over a decade under the
nomenclature of contractual engagements and thereafter denying
them consideration for regularization. The Court held that
contractual stipulation purporting to bar claims for regularization
cannot override constitutional guarantees. Acceptance of
contractual terms does not amount to waiver of fundamental rights
and contractual stipulations cannot immunize arbitrary State action
from constitutional scrutiny. The State, as a model employer, cannot
rely on contractual labels or mechanical application of Umadevi
(supra) to justify prolonged ad-hocism or discard long serving
employees in a manner inconsistent with fairness, dignity and
constitutional governance.
43. In Mohammad Sagir (supra), the Hon’ble Supreme Court held
that each case is to be decided on its own facts. In a case, where
engagement is for a substantial length of time, a presumption arises
that the work for which the workmen is engaged is of a perennial
nature and there exists a vacant post. It is difficult to accept that
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workmen are engaged as substitutes for regular workers if they have
worked for a long period of time.
44. In Sukhendu (supra) the Hon’ble Supreme Court, after
noticing that the workers discharged their duties over a prolonged
period of time, directed regularization even though they were not
appointed against sanctioned posts and the decision in Umadevi
(supra) prohibits such regularization. The Court was of the
considered view that reliance on Umadevi (supra) for not
regularizing the service of the workmen is misplaced.
45. In view of the discussions made hereinabove, we are not
inclined to interfere with the order passed by the learned Tribunal.
The time limit to comply the order passed by the learned Tribunal is,
however, extended for a period of ninety days from date.
46. WP.CT/53/2025 stands dismissed. There shall, however, be
no order as to costs.
47. All parties are directed to act on a server copy of this
judgment duly downloaded from the official website of this Court.
( AMRITA SINHA, J. )
I agree.
(BISWAROOP CHOWDHURY, J. )