[2023] 12 S.C.R. 254 : 2023 INSC 836
SAMIR KUMAR MAJUMDER
v.
THE UNION OF INDIA & ORS.
(Civil Appeal No. 6027 of 2014)
SEPTEMBER 20, 2023
[J. K. MAHESHWARI AND K. V. VISWANATHAN*, JJ.]
Issue for consideration: Whether the High Court was justified
in denying the absorption of appellant as an Assistant Teacher
in the Higher Secondary section and also rejecting his claim for
continuity of service.
Service Law – Claim for absorption as an Assistant Teacher
in the Higher Secondary section – Tenable or not:
Held: The appellant was appointed as a substitute teacher in the
payscale of a primary teacher – When he filed the first round of
proceedings in O.A. No. 209 of 1991, no plea was raised that he
worked as an Assistant Teacher in the Higher Secondary Section
– Before the Tribunal, the argument was only about regularization
– The Screening Committee having considered him, pursuant to
the orders of the Supreme Court, has thought it fit to absorb him
only as a primary teacher; the Screening Committee itself was
pursuant to the orders of the Supreme Court and based on the
Master Circular of 29.01.1991 wherein the claims of the candidates
like the appellant were examined; the records of his appointment as
a substitute teacher admittedly showed that he was only appointed
as a substitute primary teacher – Also, in the earlier round of
proceedings culminating in the order of the Supreme Court dated
15.02.1996, this issue was never raised – His claim for absorption
as an assistant teacher in the Higher Secondary Section is clearly
barred by constructive res judicata – Thus, the appellant’s claim for
absorption as Assistant Teacher in the Higher Secondary Section
is not tenable. [Paras 29, 31 and 32]
Service Law – Claim for continuity of service – Relief denied
by the High Court – Propriety:
* Author
[2023] 12 S.C.R. 255
SAMIR KUMAR MAJUMDER v. THE UNION OF INDIA & ORS.
Held: The only reason given in the order denying continuity for the
appellant while granting continuity of the same for the others was
that, in the case of the appellant, the Supreme Court had not directed
any specific order regarding continuity of service – The authorities
are wrong in stating that in the case of the appellant, the Supreme
Court had not directed any specific order regarding continuity of
service – Nowhere in the said order in the appellant’s appeal had
the benefits available to the appellant under the Master Circular
dated 29.01.1991 been taken away – In the case of Smt. Jayasree
Deb Roy (Dutta), by abundant caution, the Master Circular was
referred to and the rights granted therein were reiterated expressly
– The appellant being identically situated with the other absorbees
in the order of 02.01.1998 could not have been discriminated and
denied the benefit of his service from 04.03.1990 to the date of his
absorption – The Tribunal and the High Court have grossly erred
in denying the relief by wrongly understanding the orders of the
Supreme Court and the legal position – Thus, the appellant should
be extended the same benefits as were extended to others, who
were granted continuity by the letter of 28.12.1998. [Paras 38,
41, 42, 43 and 44]
Doctrines – Doctrine of constructive res judicata – discussed.
Maxims – Interest reipublicae ut sit finis litium – discussed.
Maharashtra Vikrikar Karamchari Sangathan v. State of
Maharashtra and Another, (2000) 2 SCC 552 : [2000]
1 SCR 166 – relied on.
Smt. Jayasree Deb Roy (Dutta) v. The Union of India
& Ors. C.A. No. 9424 of 1995 arising out of O.A.
No. 149(G) of 1989; M. Nagabhushana vs. State of
Karnataka and Others (2011) 3 SCC 408:[2011] 2 SCR
435 – referred to.
Henderson v. Henderson, (1843) 3 Hare, 100 – referred
to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6027 of 2014.
From the Judgment and Order dated 19.07.2011 of the High Court at
Calcutta in W.P.C.T. No.130 of 2009.
Ms. Uttara Babbar, Ms. Daisy Hannah, Madhav Maira, Ms. Sampriti
Baksi, Advs. for the Appellant.
256 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
Ms. Nachiketa Joshi, Rajesh Kumar Singh, Ms. Priya Mishra, Rupesh
Kumar, Amrish Kumar, Srisatya Mohanty, Ms. Astha Sharma, Advs.
for the Respondents.
The Judgment of the Court was delivered by
K.V. VISWANATHAN, J.
1. Samir Kumar Majumder (the appellant) was a school teacher at the
Railway Higher Secondary School, Alipurduar Junction. He taught
mathematics to the school children. Aggrieved by the judgment
of the High Court at Calcutta (hereinafter referred to as ‘the High
Court’) dated 19.07.2011 in W.P.C.T. No. 130 of 2009, the appellant
is before us in appeal. By the said judgment, the High Court denied
him absorption as an Assistant Teacher in the Higher Secondary
Section and also rejected his claim for continuity of service.
Relevant Facts:
2. The appellant was initially appointed as a Substitute Teacher on
05.12.1989. According to him, artificial breaks were created in
his service by terminating him on the eve of the school vacations
and thereafter reappointing him. The appellant states that he was
terminated first before the summer vacations on 09.06.1990 and was
re-engaged on 24.07.1990. His further case is that he was again
terminated on 22.09.1990, on the eve of Puja Holidays. According
to him, he was re-engaged on 01.11.1990.
3. When the matter stood thus, the appellant, fearing further creation of
artificial breaks filed an application being O.A. No. 209 of 1990 before
the Central Administrative Tribunal (for short ‘the Tribunal’) Guwahati
Bench. He prayed for setting aside of the letters of termination dated
09.06.1990 and 19.09.1990 and also prayed for regularization of his
service and for salary during the period of breaks.
4. The Tribunal passed an interim order on 03.12.1990 and it is an
admitted fact that he continued till 12.11.1994 when his services were
again terminated, after the Tribunal had dismissed his application
on 31.10.1994.
5. The Tribunal, while dismissing his application on 31.10.1994, solely
relied on another order of the same Tribunal, passed on the same
[2023] 12 S.C.R. 257
SAMIR KUMAR MAJUMDER v. THE UNION OF INDIA & ORS.
day, in O.A. No. 149(G) of 1989 in the case of Smt. Jayasree Deb
Roy (Dutta) vs. The Union of India & Ors. Para 4 of the order in
the appellant’s case is important, which we extract herein below:
“4. We have examined the question of regularization of substitute
teachers in detail in our order on O.A. No. 149(G) of 1989 passed
today. We have come to the conclusion that the substitute teachers
cannot claim regularization as a matter of right. We have also held
that selection by the Railway Recruitment Board is essential for
regular appointment. For the same reasons we hold that the applicant
is not entitled to be granted any relief of regularization. More-over,
in the instant case although the applicant had appeared before the
Recruitment Board he was not selected. That does not entitled him to
ask for any relief of regularization on the basis of his earlier service
as substitute teacher.”
6. O.A. No. 149(G) of 1989 was carried in Appeal to this Court by way
of Civil Appeal No. 9424 of 1995 along with the batch of matters of
similarly situated candidates, which was disposed of on 13.10.1995.
The operative portion of the said order reads as under:-
“… The appellants were, therefore, entitled to the benefit conferred
under para 5.1 of the circular (Circular R.B. No. 12/91 M.C. No. 20/91
E(NG)/90/SC/Master) dated January 29, 1991, and on that basis the
appellants are entitled to absorption on regular basis through the
process of screening by the screening committee in accordance with
the said provision and they are not re-quired to face selection by the
Railway Recruitment Board for the purpose of regular absorption.
The judgment of the Tribunal holding otherwise cannot, therefore,
be upheld and has to be set aside.
After the impugned Judgment of the Tribunal, the services of the
appellants have been terminated.
In case the appellants are found suitable for absorption by the
Screening Committee, they should be appointed on regular basis
on the post that was held by them and they would also be en-titled
to continuity of service. The appeals are, therefore, allowed, the
judgments of the Tribunal dated October 31,1994 in the applications
filed by the appellants are set aside and the said applications are
258 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
allowed with the direction that the appellants shall be considered
for absorption on regular basis on the post of Assistant Teacher by
the Screening Committee in accordance with para 5.1 of the master
circular dated January 29, 1991, and in case the appellants are found
suitable for such absorption by the Screening Committee, they shall
be restored to the post held by them with continuity of service.
The process of selection by the Screening Committee as per directions
in this order shall be completed within a period of three months from
the receipt of the copy of this order. A copy of this order be sent to
the Chief Personnel Officer, North East Frontier Railway, Maligaon,
Guwahati.
By our order dated March 27, 1995, we had directed that appointment
may not be made on six posts of school teachers. The said order
shall continue till the Screening Committee completes the process
of screening.”
7. The appellant too carried the matter from the Tribunal to this Court.
His matter was disposed of on 15.02.1996 in the following terms:-
“These appeals relate to regular absorption of the appellants who
are working as substitute teachers in the Railways. In the impugned
judgment the Central Administrative Tribunal has observed that the
appellants should be given an opportunity to appear before the
Selection Board if they are otherwise eligible as and when such
selection is made and has expressed the hope that the respondents
would try to accommodate them even on temporary basis if there
happens to be any casual vacancy available from time to time and for
that purpose they may be placed on waiting list of substitute teachers.
The submission of Shri Puri, the learned counsel appearing for the
appellants, is that the appellants who have crossed the age bar may
not be eligible for such consideration. Having regard to the facts and
circumstances of these cases, it is directed that if the appellants
have crossed the prescribed maximum age, they may be considered
for regular selection by giving relaxation in that regard. But such
relaxation shall be confined to one opportunity for consideration for
such selection. The appeals are disposed of accordingly. No order
as to costs.”
[2023] 12 S.C.R. 259
SAMIR KUMAR MAJUMDER v. THE UNION OF INDIA & ORS.
8. Even though textually, the orders may appear different, the
respondent-authorities rightly acted in terms of the true purport
of the order. They subjected the appellant also to the process of
screening by the Screening Committee in accordance with para 5.1
of the Master Circular dated 29.01.1991 (hereinafter referred to as
‘the Master Circular dated 29.01.1991’)
9. After subjecting the appellant for screening, by an order of 02.01.1998,
the appellant was appointed as Primary Teacher (Bengali Medium)
in the Railway Higher Secondary School, Alipurduar Junction against
an existing vacancy.
10. Being aggrieved, the appellant filed Original Application No. 978 of
1998 before the Central Administrative Tribunal, Calcutta Bench.
11. The grievance was that firstly, the appellant should have been
absorbed in the post of Assistant Teacher instead of being absorbed
as a Primary Teacher with admissible continuity of service in the
pay-scale of Rs.5500-9000 and not Rs.4500-7000 that was now
offered under the 02.01.1998 order; secondly, the appellant is entitled
to the pay-scale and allowance admissible to the post of Assistant
Teacher Grade-I, namely, Rs.1640-2900 from 05.12.1989 instead of
the pay-scale of Rs.1200-2040 that was offered. Thirdly, that under
the Master Circular dated 29.01.1991, a Substitute School Teacher
who acquires temporary status, after putting in continuous service for
three months, is entitled to continuity in service as prescribed therein.
12. At this stage, we can profitably refer the order dated 28.12.1998
passed on the aspect of continuity of service with regard to these
teachers who were currently absorbed. The order reads as under:
“Sub:- Continuity of Service on regular absorption
In compliance with Judgment of Hon’ble Supreme Court of India
and CAT/Guwahati dated 13-10-95, 15-2-96. 2-1-96 and 7-10-96,
the following substitute teachers are absorbed as Primary teacher
(Bengali Medium) and posted in Railway Schools.
1. Smt. Jayashree Deb Roy (Dutta)
2. Smt. Ratna Roy.
260 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
3. Shri Subal Chandra Chakraborty
4. Smt. Anupama Bhowmick
5. Shri Pijush Kanti Das
6. Smt.Radha Chakraborty
7. Shri S. K. Majumder.
The past service rendered by (1) Smt. Jayashree Deb Roy (Dutta)
(2) Smt. Ratna Roy (3) Shri Subal Chandra Chakraborty (4) Smt.
Anupama Bhowmick and Shri Pijush Kanti Das as Substitute teacher
in different spells may be taken into account for all purpose except
Seniority from the date of acquiring of temporary status with treating
breaks as Dies-non.
However, the Hon’ble Court has not directed any specific order
regarding Continuity of service in favour of Smt. Radha Chakraborty
and Shri S.K. Majumder and as such the date of appointment will
be the date of regular appointment after regularization by Screening
Committee.
This has the approval of Competent authority.”
13. As will be seen from the penultimate paragraph of the letter dated
28.12.1998, extracted hereinabove, the only reason that the appellant
was denied continuity of service while others were granted was that
this Court had not made any order regarding continuity of service.
All other teachers, including Jayashree Deb Roy (Dutta) [applicant
in O.A. No. 149(G) of 1989] were granted continuity of service and
the past service rendered by them as substitute Teacher in different
spells was taken into account for all purposes except seniority from
the date of acquiring of temporary status by treating breaks as dies
non. (A day on which no legal business is carried on).
14. The respondent-authorities defended their orders before the Central
Administrative Tribunal, Calcutta Bench.
Findings of the courts below:
15. The Central Administrative Tribunal, Calcutta Bench, by its judgment
of 28.11.2008, held that the appellant had only been appointed as
[2023] 12 S.C.R. 261
SAMIR KUMAR MAJUMDER v. THE UNION OF INDIA & ORS.
a primary teacher on 05.12.1989 in the pay-scale of Rs.1200-2040;
that functioning as a mathematics teacher for Classes XI and XII,
as a stop-gap measure, would not entitle him the rights of a regular
appointee to the post of Post Graduate Teacher; that the orders
of this Court did not, in the appellant’s case, direct specifically
regarding continuity of service, as was done in the other cases and
the appellant’s case being one of regular absorption, no continuity of
service can be given to him. Holding so, the Central Administrative
Tribunal, Calcutta Bench dismissed the application of the appellant.
16. The appellant filed a Writ Petition before the High Court at Calcutta.
The High Court once again, relying on the order of this Court, held
that the benefit of continuous service was specifically rejected in the
case of the appellant. So holding, the High Court upheld the order
of the Central Administrative Tribunal, Calcutta Bench.
17. The appellant is before us in Appeal.
Contentions:
18. We have heard Ms. Uttara Babbar, learned counsel for the appellant
and Mr. Nachiketa Joshi, learned counsel for the Union of India. Both
the learned counsel have painstakingly taken us through the records
of the case and presented their respective points of view very ably.
19. Ms. Uttara Babbar, learned counsel for the appellant, contends
that under the Master Circular dated 29.01.1991, Clause 4.3, 5.1
and 6 would apply to the case of the appellant. According to her,
on completion of three months continuous service, the appellant
acquired the temporary status under Clause 4.3; that under Clause 5,
Substitutes, who have acquired temporary status were to be screened
by a Screening Committee and not by Selection Boards for the
purpose of absorption, and under Clause 6, the date of appointment
of a substitute to be recorded in the service book against the column
“date of appointment” should be the date on which the substitute
attains a temporary status after continuous service of three months,
if the same is followed by his/her regular absorption. According to
the learned counsel, only for those who do not acquire temporary
status and who are regularly appointed, the date of appointment
would be the date when they are absorbed.
262 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
20. According to the learned counsel, the appellant having completed
three months of continuous service as a substitute teacher is entitled
to reckon his date of appointment as 04.03.1990 (on completion of
three months) since he now stands duly absorbed by the order of
02.01.1998.
21. According to the learned counsel, the appellant ought to have been
absorbed as Assistant Teacher since he worked as a substitute
Assistant Teacher and taught Classes XI and XII. Her further
alternative case is if he has to be only considered as absorbed under
the category of Primary Teacher, then he should be entitled to the
benefit under the Master Circular dated 29.01.1991 and should be
entitled to reckon his service under Clause 6 of the said Circular
from 04.03.1990. Learned counsel further contends that the order
of this Court in the case of the appellant dated 15.02.1996 should
be read in conjunction with the order of this Court dated 13.10.1995
in the case of Smt. Jayasree Deb Roy (Dutta) - applicant in O.A.
No. 149(G) of 1989. Learned counsel lays particular emphasis on
the fact that the Tribunal in the appellant’s case in O.A. No. 209 of
1990 had wholly relied on the order in the case of O.A. No. 149(G)
of 1989 (the case of Smt. Jayasree Deb Roy (Dutta). Reiterating
para 4 of the said order, learned counsel contends that O.A. No. 209
of 1990 of the appellant was dismissed for the same reasons that
O.A. No. 149(G) of 1989 was dismissed. Learned counsel further
emphasizes the fact that in C.A. No. 9424 of 1995, by order dated
13.10.1995, this Court in the case of Smt. Jayasree Deb Roy (Dutta)
had specifically recorded that the judgment of the Tribunal in O.A.
No. 149(G) of 1989 was set aside.
22. Learned counsel further contends that even the authorities so
understood the orders of this Court and it is for that reason that they
subjected the appellant also to a screening before the Screening
Committee before the absorption on 02.01.1998. Learned counsel
contends that, having done so, there was no plausible reason to
discriminate the case of the appellant when it came to the grant of
relief regarding continuity of service on the ground that this Court
had not made any specific order regarding continuity of service.
[2023] 12 S.C.R. 263
SAMIR KUMAR MAJUMDER v. THE UNION OF INDIA & ORS.
23. Learned counsel contends that the grant of age bar relaxation can
only be understood as a grant of additional relief and this cannot
be read to mean that there was denial of the relief of continuity of
service, if the appellants’ were found entitled for absorption which
they ultimately were found be entitled to.
24. Mr. Nachiketa Joshi, learned counsel for the Union of India, vehemently
opposed the above submissions. Learned counsel, defending the
orders of the courts below would submit that the claim for absorption
as Assistant Teacher was totally unjustified. According to the learned
counsel, the appellant was appointed in 1989 only as a substitute
primary teacher in the pay-scale of the primary teacher and hence
merely on the basis of the claim that some stop-gap classes XI and
XII were taken, no plea for absorption as Assistant Teacher could be
justified/made. He defended the order of absorption dated 02.01.1998
and also contended that the authorities were justified in passing
the order of 28.12.1998 denying continuity of service for the period
before 02.01.1998, since there was a clear distinction between the
judgment of this Court in the case of Smt. Jayasree Deb Roy (Dutta)
and others in the case of the appellant.
25. Drawing attention to the orders of this Court in the case of Smt.
Jayashree Deb Roy (Dutta) vs. Union of India and Ors. (C.A.
No. 9424 of 1995) arising out of O.A. No. 149(G) of 1989, learned
counsel contends that in the case of Smt. Jayasree Deb Roy (Dutta)
(supra), there was a specific finding that the appellants in that case
were entitled to continuity of service in accordance with para 5.1 of
the Master Circular dated 29.01.1991 in the event the Screening
Committee found them fit for absorption.
26. Contrasting this with the judgment of this Court in the appellant’s
case, learned counsel would contend that no such direction for
granting continuity of service in the event of absorption was given
in the appellant’s case.
27. Learned counsel would contend that even factually the case of the
appellant was different from the case of Smt. Jayasree Deb Roy
(Dutta) inasmuch as Smt. Jayasree Deb Roy (Dutta) was in service on
the date of absorption, while the appellant was not. This submission
264 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
is seriously disputed by Ms. Uttara Babbar. Nothing much however
turns on this last submission of the counsel for the respondents.
Reasons and Conclusion:
28. We have considered the rival contentions and perused the records.
Claim for absorption as Assistant Teacher – Higher Secondary
Section:
29. We are of the view that the appellant’s claim for absorption as
Assistant Teacher in the Higher Secondary Section in the pay-scale
of Rs.5500-9000 is not tenable. The appellant was appointed as
a substitute teacher in the pay-scale of a primary teacher. In fact,
when he filed the first round of proceedings in O.A. No. 209 of 1991,
no plea was raised that he worked as an Assistant Teacher in the
Higher Secondary Section. Even when he obtained interim orders
from the Tribunal on 03.12.1990, it was only to the effect that the
services of the appellant should not be dispensed with without the
leave of the Court. Even before the Tribunal, the argument was only
about regularization. Before this Court too, no claim for regularization
as Assistant Teacher in the Higher Secondary Section was made.
30. The contention now raised in the present round of proceedings (O.A.
No. 978 of 1998) for absorption as Assistant Teacher in the Higher
Secondary Section is strongly refuted by the respondents by pointing
out that his engagement as a substitute teacher was only in the payscale of Rs.1200-2040 which was the scale for the primary teacher.
They contend that his claim that he was allowed to take classes for XI
and XII is unfounded. No doubt, the Central Administrative Tribunal,
Calcutta Bench has recorded that the applicant had functioned as a
mathematics teacher for Class XI and XII as a stop-gap measure.
31. This issue, however, need not detain the Court any longer as at no
point in the first round of proceedings, the appellant made such a
claim; the Screening Committee having considered him, pursuant
to the orders of this Court, has thought it fit to absorb him only as
a primary teacher; the Screening Committee itself was pursuant
to the orders of this Court and based on the Master Circular of
29.01.1991 wherein the claims of the candidates like the appellant
[2023] 12 S.C.R. 265
SAMIR KUMAR MAJUMDER v. THE UNION OF INDIA & ORS.
were examined; the records of his appointment as a substitute teacher
admittedly show that he was only appointed as a substitute primary
teacher; it is on the completion of three months as substitute primary
teacher that he acquired temporary status and on absorption now
he became entitled to certain benefits under the Circular which we
have elaborated herein above.
32. In the earlier round of proceedings culminating in the order of this
Court dated 15.02.1996, this issue was never raised. His claim for
absorption as an assistant teacher in the Higher Secondary Section
is clearly barred by constructive res judicata.
Law on Constructive Res Judicata:
33. Almost two centuries ago, in Henderson vs. Henderson, (1843) 3
Hare, 100, the Vice-Chancellor Sir James Wigram felicitously puts
the principle thus:-
“In trying this question I believe I state the rule of the Court correctly
when I say that, where a given matter becomes the subject of
litigation in, and of adjudication by, a Court of competent jurisdiction,
the Court requires the parties to that litigation to bring forward their
whole case, and will not (except under special circumstances) permit
the same parties to open the same subject of litigation in respect
of matter which might have been brought forward as part of the
subject in contest, but which was not brought forward, only because
they have, from negligence, inadvertence, or even accident, omitted
part of their case. The plea of res judicata applies, except in special
cases, not only to points upon which the Court was actually required
by the parties to form an opinion and pronounce a judgment, but
to every point which properly belonged to the subject of litigation,
and which the parties, exercising reasonable diligence, might have
brought forward at the time. ….”
34. This principle popularly known as the doctrine of constructive res
judicata, based on the might and ought theory, has been recognized by
this Court in several judgments. In Maharashtra Vikrikar Karamchari
Sangathan vs. State of Maharashtra and Another, (2000) 2 SCC
552, this Court held as under:-
266 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
“22. It was then contended on behalf of the appellants that neither the
Recruitment Rules of 1971 nor the Seniority Rules of 1982 provided
for carrying forward the vacancies falling in either category. In the
absence of such rules which specifically provide for carrying forward
the vacancies falling in either category, no such carry-forward rule
could be implied either in the Recruitment Rules or in the Seniority
Rules. This contention need not detain us any longer because such a
contention was available to the appellants in the earlier proceedings,
namely, Transfer Application No. 822 of 1991 and the same was not
put in issue. That not having been done, it must follow that such a
contention is barred by the principles of constructive res judicata.
Neither the contesting respondents nor the appellants ever raised this
contention at any stage of the proceedings in Transfer Petition No.
822 of 1991. It would, therefore, be too late to raise such a contention
when the seniority list has been finalized pursuant to the judgment
of MAT, Bombay Bench in Transfer Petition No. 822 of 1991.”
Interest reipublicae ut sit finis litium:
35. The doctrine itself is based on public policy flowing from the age-old
legal maxim interest reipublicae ut sit finis litium which means that in
the interest of the State there should be an end to litigation and no party
ought to be vexed twice in a litigation for one and the same cause (See
M. Nagabhushana vs. State of Karnataka and Others, (2011) 3
SCC 408.
36. The contention raised on behalf of the appellant that he should at
least be paid the salary and allowances as paid to the Assistant
Teachers in the Higher Secondary Section for the time he functioned
should also fail for the reason as set out herein above.
Claim for continuity of service:
37. The appellant however cannot be denied continuity of service under
the Master Circular dated 29.01.1991 read with the orders of this
Court in Smt. Jayasree Deb Roy (Dutta) (supra) [C.A. No. 9424 of
1995] and the order in the appellant’s own case i.e. C.A. No. 3557
of 1996 dated 15.02.1996. This is a fresh cause of action, which
has arisen in view of his absorption on 02.01.1998, subsequent to
the culmination of the earlier round of proceedings.
[2023] 12 S.C.R. 267
SAMIR KUMAR MAJUMDER v. THE UNION OF INDIA & ORS.
38. The conduct of the authorities themselves in subjecting the appellant
to screening before the Screening Committee, like they did for Smt.
Jayasree Deb Roy (Dutta) and Others, also clearly indicates that
even they wanted to treat the appellant’s case on par with the case
of Smt. Jayasree Deb Roy (Dutta) and Others. It is on that basis that
the appellant was found fit for absorption as a primary teacher and
he was so absorbed. The only reason given in the order denying
continuity for the appellant while granting continuity of the same for
the others is that, in the case of the appellant, this Court had not
directed any specific order regarding continuity of service.
Rights under the Master Circular:
39. The appellant’s right first of all flows from the Master Circular dated
29.01.1991, as has been rightly contended by learned counsel for
the appellant. For the sake of convenience, we extract herein below
the relevant clauses:-
“4. BENEFITS.
4.1. Substitutes engaged should be paid regular scales of pay and
allowances admissible to the post against which they have been
appointed irrespective of the nature of duration of the vacancy.
4.2. They be allowed all the rights and privileges as are admissible
to temporary railway employees on completion of four months
continuous Service.
4.3. Substitute school teacher may, however, be afforded temporary
status after they have put in continuous service of three months. Their
service to be treated as continuous for all purposes except seniority
on their eventual absorption against regular posts after selection.
4.4 The conferment of temporary status after completion of four
months continuous service in the case of others and three months
continuous service in the case of substitute teachers mentioned
in paras - 4.2 and 3 above does not entitle them to automatics
absorption/ appointment to Railway service unless they are selected in
the approved manner for appointment or absorption to regular posts.
268 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
4.5 Service of substitutes will count for Pensionary benefits from the
date of completion of four months (3 months in the case of teachers)
continuous service provided it is followed by absorption in regular
Group-C’ (Class lll)/Group-’D’ (Class -IV) Service without break.”
... ...
“5. Screening of the substitutes for their absorption in regular service:-
5.1 Substitutes, who have acquired temporary status should be
screened by screening Committees and not by Selection Boards,
Constituted for this purpose be-fore being absorbed in regular Group
-’C’ (Class-Ill) and Group-’D’ (Class-IV) posts.
Such a screening Committee should consist of at least three members,
one of whom should belong to the SC/ST Communities and another
to minority communities.”
… ...
5. 11 Gaps which may occur in service of substitutes between two
engagements should be ignored for the purpose of temporary status
on completion of four months services and in case of teachers, on
completion of 3 months service.”
… …
“6. Date of appointment.
The date of appointment of a substitute to be recorded in the service
book against the column “date of appointment” should be the date
on which he /she attains temporary status after continuous service
of four months if the same is followed by his/her regular absorption.
Otherwise, it should be the date on which he/she is regularly
appointed/absorbed.
This applies to substitute teachers also who attain the temporary
status after a continuous service of three months only.”
40. A reading of the above clearly shows that on completion of three
months of continuous service as substitute teacher, the incumbent
acquires temporary status. It is also clear that substitutes who have
acquired temporary status should be screened by the Screening
Committee and not by Selection Board. It is also clear that under
[2023] 12 S.C.R. 269
SAMIR KUMAR MAJUMDER v. THE UNION OF INDIA & ORS.
Clause 5.11, gaps which may occur in service of substitutes between
two engagements should be ignored for the purpose of temporary
status on completion of four months service and in case of teachers,
on completion of three months service. Further, it is clear that the date
of appointment should be the date on which they attained temporary
status in the event they are regularly absorbed. As is clear from the
dates mentioned hereinbelow that the appellant having acquired
temporary status on 04.03.1990 is entitled to count his service from
04.03.1990 in view of his absorption in the service as a primary
teacher on 02.01.1998.
41. The authorities are wrong in stating that in the case of the appellant
this Court had not directed any specific order regarding continuity
of service. This Court’s order of 15.02.1996 has to be read with
the order in the case of Smt. Jayasree Deb Roy (Dutta) dated
13.10.1995. Nowhere in the order of this Court in the appellant’s
appeal had the benefits available to the appellant under the Master
Circular been taken away. In the case of Smt. Jayasree Deb Roy
(Dutta), by abundant caution, the Master Circular was referred to and
the rights granted therein were reiterated expressly in this Court’s
order. On the facts of the present case, we are not persuaded to
accept the contention of the respondent that the order of this Court
in the appellant’s case should be so read as having denied him the
benefits of Master Circular dated 29.01.1991.
42. The appellant being identically situated with the other absorbees
in the order of 02.01.1998 could not have been discriminated and
denied the benefit of his service from 04.03.1990 to the date of his
absorption.
43. The Tribunal and the High Court have grossly erred in denying the
relief by wrongly understanding the orders of this Court and the
legal position.
44. We direct that the appellant will be entitled to take into account
the past service rendered by him as substitute teacher in different
spells, from the date of obtaining temporary status (04.03.1990). The
appellant should be extended the same benefits as were extended
to others, who were granted continuity by the letter of 28.12.1998.
270 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
45. The appellant has superannuated now. The pay of the appellant shall
be re-fixed after granting continuity of service with all consequential
benefits in accordance with Clause 6 of the Master Circular dated
29.01.1991. All the necessary increments and allowances due on
that basis also should be granted. The retrial benefits also should
be consequently reworked. The unpaid arrears amount be paid to
the appellant with six percent interest from the respective dates the
various amounts fell due. Let the payment be made within eight
weeks from today.
46. Accordingly, the impugned order of the High Court dated 19.07.2011
passed in W.P.C.T. No. 130 of 2009 is set aside. The Appeal is partly
allowed in the above terms. There shall be no order as to costs.
Headnotes prepared by: Ankit Gyan Result of the case : Appeal partly allowed.
