Gauhati High Court
Shri Nabam Ana & Ors vs The State Of Arunachal Pradesh & Ors on 31 March, 2017
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
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IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
ITANAGAR PERMANENT BENCH
WP(C) 333 (AP)2015
1. Shri Nabam Ana,
Office of the DFO (Social Forestry Division)
Arunachal Pradesh, Mobile No.961565370
2. Mrs. Dopi Kamsi,
Office of the PCCF Itanagar,
Govt. of Arunachal Pradesh.
3. Mrs. Taba Sangte,
Office of the RFO Naharlagun,
Social Forestry Division,
Govt. of Arunachal Pradesh.
4. Mrs. Sabitri Biswakarma,
Office of the DFO (Social Forestry Division)
Itanagar, Govt. of Arunachal Pradesh,
......P etitioners
By Advocates:
Mr. N. Nibo,Advocate,
Mr. H. Lampu,Advocate
Mr. N. Opo, Advocate
Mr. N. Kago, Advocate
-Versus-
1. The State of Arunachal Pradesh,
Represented by Chief Secretary,
Government of Arunachal Pradesh,
Itanagar, Arunachal Pradesh.
2. The Principal Secretary,
Enviroinment and Forest,
Govt. of Arunachal Pradesh,
Itanagar.
3. The Secretary Environment and
Forest Govt. of A.P. Itanagar.
4. The Principal Chief Conservator
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of Forest, Govt. of Arunachal Pradesh,
Itanagar.
5. The Addl. Principal Chief Conservator of Forest,
(working Plan & Conservation) Govt. of A.P.
Itanagar,
6. The Chief Conservator of Forest,
Cum-Director, SFRI, Chimpu, Itanagar,
Govt. of A.P.
7. The Chief Conservator of Forest,
Central Arunachal Pradesh Circle,
Pasighat, Govt. of A.P.
8. The Chief Conservator of Forest,
Southern Arunachal Circle,
Demaji, Govt. of Arunachal Pradesh.
9. The Chief Conservator of Forest,
Eastern Arunachal Pradesh, Tezu,
Govt. of A.P.
10. The Chief Conservator of Forest,
Western Arunachal Circle,
Banderdewa, Govt. of A.P.
11. The Conservator of Forest (HQ),
Govt. of A.P. Itanagar.
12. The Divisional Forest Officer,
Social Forestry Division,
Itanagar, Govt. of A.P.
13. Smti Sartam Birmati,
Office Peon, office of the DFO,
(Social Forestry Division)
Itanagar, Arunachal Pradesh.
14. Smti Joram Joya
Office Peon, office of the DFO,
(Social Forestry Division)
Itanagar, Arunachal Pradesh.
15. Smti Lod Punyi
Office Peon (Multi Tasking Staffs)
Office of the PCCF & Principal Secretary,
(E & F) Itanagar, Arunachal Pradesh.
16. Smti Yanam Leya,
Office Peon (Multi Tasking Staffs)
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Office of the PCCF & Principal Secretary,
(E & F ) Itanagar, Arunachal Pradesh.
17. Smti Tana Meena
Office Peon (Multi Tasking Staffs)
Office of the PCCF & Principal Secretary,
(E & F) Itanagar, Arunachal Pradesh.
18. Smti Sosar Yage
Office Peon (Multi Tasking Staffs)
Office of the PCCF & Principal Secretary,
(E & F ) Itanagar, Arunachal Pradesh.
.....R espondents
By Advocates:
Mr. S.Tapin, Sr. Govt. Advocate
(Respondents No.1 to 12)
Mr S.Tashik,Advocate Sage Islam, Advocate (Respondent Nos. 13 & 14) Ms N. Danggen,Advocate O. Perme, Advocate, (Respondent Nos. 15 to 18) :::BEFORE:::
THE HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN Date of hearing : 21-02-2017 Date of Judgment & Order : 31.03.2017 JUDGMENT & ORDER (CAV) Heard Mr. N. Nibo, learned counsel for the petitioners and Ms. N. Danggen, learned counsel appearing for respondent nos. 1 to 12 and Mr S.Tashik, learned counsel appearing for respondent nos. 13 and 14 and Ms. N. Danggen, learned counsel, appearing for respondent nos. 15 to 18.
2. The four petitioners herein working as contingent /casual workers in the office of Principal Chief Conservator of Forest (PCCF), Itanagar, Divisional Forest Office, 4 (DFO), Social Forestry Division, Itanagar and Range Forest Officer, (RFO), Social Forestry Division, Naharlagun under the Department of Forest and Environment., Govt. of Arunachal Pradesh. Grievance raised by the petitioners herein is that they are deprived of their regularisation of service by the respondent authorities. It is submitted that the Department of Forest and Environment, Govt. of Arunachal Pradesh have 35 number of vacancies of Group D post and all Arunachal Pradesh Workers Union has submitted a representation on 9.10.2012 for appointment of casual/contingent workers on regular/adhoc basis who have attained the service of 10 to 15 years to avoid random appointments, similar appointment of contingent workers that has been given to one Smti Ruhi Taru Yatung.
3. As per the recruitment rules of Group D post vide gazette notification dated 6.11.2008, an amendment recruitment rules 17.09.2010 and 27.01.2011, such Group D Post are to be filled up from 25% of the casual workers who have been working in the Department for more than 20 years and 75% of the post will be filled up through Direct Recruitment on the basis of examination on the subject English, General Knowledge, Mathematics and viva voce. It is submitted that as per information obtained through RTI, there are 33 posts of vacancies, out of which 8 persons were appointed without any interview under 25% of reserved category and now the respondent authorities without having any appropriate law processed for regular appointment of casual/contingent workers of the Department showing only 26 vacant posts from the 33 numbers existing vacancy in the department and formulated the process of appointment for the Group D post by adopting the principal recruitment rules 2008 where the educational qualification for the Group D post is class V pass. It has been contended that the aforesaid posts were meant for 75% quota for direct recruitment, as reservation quota of 25% has already been filled up from the contingency/casual workers. Thus it is alleged that the respondent authorities illegally has allotted as many as 19 posts to be filled up with relaxation of educational qualification (Class-V pass), on the seniority cum merit basis without conducting interview amongst the departmental workers including the contractual/contingent staff from among APST, which is meant for 75% quota to be filled up through direct recruitment. The respondent authorities initiated and conducted DPC and made appointment for all the private respondents numbering 13 to 18 without going for direct recruitment of remaining 75% of vacant posts, whereas the petitioners are eligible for appearing interview for the post of Group D as per Recruitment Rule 2008 5 under the Department of Forest and Environment., Govt. of Arunachal Pradesh. Such an exercise on the part of the respondent authorities is without any authority of law and has resulted deprivation of petitioners equal opportunity in the matter of public employment. The petitioners have prayed for recalling all the orders for appointment of the private respondents of Group D posts. All the relevant rules and notifications pertaining to 2008, 2010 and 2011 and other connected papers have been annexed.
4. The respondent nos. 1 to 12 in their affidavit in opposition as well as additional affidavit has seriously contended that the petitioners have filed this case by suppressing certain material facts. One of the petitioners Dopi Kamsi, a contingent worker in the office of PCCF has participated in the interview conducted by the Departmental Selection Committee held on 23.3.2015 but she could not compete the other candidates. The other three petitioners who were working as casual basis or daily wages basis under the office of DFO, Social Forestry Division so there is no question of calling them for interview in PCCF Office. As the office of DFO has also been allotted two number of posts of peon and conducted the recruitment through DPC (vide Annexure-1 DPC held on 23.3.2015).
5. Basing on the appointment of one Smti Ruhu Taru Yatung, a memorandum was filed by all Arunachl Pradesh Workers Union on 9.10.2012 requesting for adhoc appointment of other casual workers also. The said memorandum was processed and submitted to the State Govt. requesting to fill up of all vacant posts of Group D internally from amongst the already working candidates in the department without open advertisement to provide fairness and equal opportunity with relaxation of all educational qualification from class X to V with special dispensation of open advertisement and conduct recruitment circle wise subject to provisions of recruitment rules. Accordingly the Govt. Approval was obtained and available vacant post of Group D was allotted to different circles and finally recruitment was conducted as per the modalities decided by the department on 30.1.2015 (Annexure-2). It has also been submitted that 25% reservation for senior most casual workers, who have completed more than 20 years have been appointed as per policy guidelines and with the advice of P & AR Department for appointment as per seniority without, conducting recruitment examination for filling up of 25% of vacancy against serving contingent staff. The 75% of posts against direct recruitment has been filled up through amongst the working candidates through Departmental Selection Committee (in short DSC).
66. Regarding formulation of total number of 33 posts, 13 number posts are stated to be reserved for different categories and remaining 20 posts have been distributed to the circles and divisions. 4 number of posts have been filled up in the PCCF office by holding DSC from amongst the existing casual/contractual workers, after obtaining approval from the State Govt. with special dispensation of open advertisement and relaxation of educational qualification as mentioned above, on the seniority cum merit. The same procedure was also followed in different circles. Accordingly it has been contended that the claim of the petitioner that the respondent authorities have filled up the Group D posts without conducting an interview is wrong. It has been specifically stated that respondent nos. 13 and 14 have been appointed by DFO , Social Forestry by conducting DPC as against two posts of Group D allotted to the said division, from the existing casual contingency workers. Similarly the other respondent nos. 15 to 18 were also appointed on merit by the establishment of PCCF by conducting DSC. Hence, There is no illegality or irregularity in their appointment.
7. As regards the 4 number of petitioners herein, it has been submitted that all petitioners have knowledge of holding interview/test by respondent authorities and petitioner Dopi Kamsi has taken the opportunity to participate in the interview held on 23.3.2015 and other three petitioners being casual workers under DFO, Social Forestry Division, Itanagar has no jurisdiction to interfere with the business of PCCF office as both the divisions conducted separate DPC. Accordingly it has been submitted that there being no unfair means adopted by the respondent authorities while issuing such allotment order for appointment to the private respondents, the writ petition is liable to be dismissed.
8. In their affidavit-in-opposition the respondent nos. 13 and 14 as well as other respondents 15 to 18 it has been contended that the petitioners have no locus to challenge the violation of the Recruitment Rules about that the 75% of the posts meant for direct recruitment has not been filled up as per procedure as the petitioners have already crossed the upper age limit for appearing in the said direct examination. Moreover, the petitioners have not challenged the policy decision taken by the Govt.in its minutes of meeting dated 30.1.2015, wherein the State Govt. has given relaxation for appointment of existing workers by holding departmental test/DPC through the Departmental Selection Committee and on the basis of the aforesaid policy decision the impugned order of appointments of private respondents were issued. Moreover, all the 7 petitioners were disqualified before the DPC for consideration of regularisation due to lack of prescribed length of service for 20 years. The respondent nos. 13 & 14 are senior most and served the department for more than 20 years. Similar is the version of respondent nos. 15 to 18 who have contended that they have duly appeared for the interview on 23.3.2015 and selected on the basis of recommendation of Departmental Selection Committee. Therefore, it would be wrong to allege that there has been violation of recruitment rules in view of the fact that the respondent authorities within their power has relaxed the recruitment rules which is borne out of necessity. Moreover, the respondent authorities in the interest of all casual employees like petitioners themselves have taken a policy decision by allowing limited recruitment process and all the contentions raised by the petitioner deserves no merit.
9. I have considered the pleadings between the parties as well as the documents that have been annexed and the relevant rules referred by the petitioners and the relevant two file produced. The basic grievance raised by the petitioners herein is that the respondent authorities have issued appointment order meant for 75% of the Group D posts without holding interview/examination as indicated in the rule and has flouted the provisions as such. They have also contended that they are deprived from appearing in the examination and regularisation of service despite their long tenure in service as casual workers. Being aggrieved, the petitioners through their Association has filed a representation dated 3.10.2012 before the respondent authorities for their regularisation as that one of the candidate Smti Ruhi Taru Yatung.
10. The respondents herein both official and private in their affidavits have specifically pleaded and asserted that Smti Ruhi Taru Yatung was appointed on Adhoc basis with the approval of the State Govt. and thereafter a memorandum from All Arunchal Pradesh Forest Workers Union dated 9.10.2012 was filed for appointing the other candidate on Adhoc appointment also. On consideration of office file No.FOR.291/E-5/B /2015, it reveals that the aforesaid representation made by the Petitioners Association was put up before the PCCF and Principal Secretary (E & F) and on 1.11.2012 following note was given by the PCCF and Principal Secretary (E & F):
"In the interest and fairness and for giving opportunity to those who have been serving in the Department for long years as well as to avoid pick and choose it is proposed that the suggestion that has been given by the office, Govt. approval may be obtained for filling up all posts 8 only through departmental, workers without making any open advertisement following R.R, with condition that those existing workers who are to be considered for appointment should have minimum qualification of Class-V. It was also proposed that if the approval is obtained then permission to carry out circle wise recruitment may be accorded. "
The said record also reveals that aforesaid proposal was approved finally by the Chief Minister, Arunachal Pradesh on 7.1.2013 and only thereafter the process for filling up those posts were initiated by Circlewise distribution of the posts. It is obvious that only on the prayer of the petitioners association such a move was made to accommodate the working casual workers and nothing else can be attributed to the respondent side so as to indicate any malafide on the part of respondent authorities.
11. That the contentions of the petitioners is that the private respondents were illegally appointed without holding any interview/examination and without informing the petitioners, is found to be not true. The minutes of the departmental selection committee (in short DSC) vide Annexure -1 internal page 11 itself reflects that one of the petitioner herein Dopi Kamsi appeared before the selection committee at serial no.8 and DSC held on 13.3.2015 and 23.3.2015, examined all the relevant documents and also taken trade test and their experience in their trade and basing upon their overall performance the committee has selected all the private respondents. That apart it reflects that another petitioner namely Shri Nabam Ana (petitioner no.1) also submitted a representation dated 26.11.2014 before the Principal Chief Conservator of Forests to the fact that they came to learn that some of their casual staff are going to be appointed on adhoc or regular service without advertisement so such interview should be stopped and fresh advertisement should be made for filling up the posts within the departmental staff to be made from the office of PCCF. Such an application obviously indicate that the petitioner no.1 also had knowledge about the interview to be conducted by the DSC and now her denial of knowledge of such interview is nothing but suppression of facts.
12. On the next, vide Annexure-2 minutes of the meeting regarding appointment of multitasking staff held on 30.1.2015, reflects that a policy decision was taken by the 9 department concerned for recruitment of staff as per R.R. without open advertisement wherein decision was taken in the following manner:-
"out of total vacancy of 33 posts of Peon and Chawkidar 8 posts being 25% are filled up by senior most departmental workers as per common seniority list prepared in the department in accordance with the guidelines of the department of P & AR for the State Govt. Further setting aside 5% sports quota (two posts) and compassionate appointment 5% (two posts) total available vacancy for direct appointment is 21 including 3% quota for handicapped candidate (one post).
As per approval of the Government in the File No. FOR. 82/E-
5/B/99 Vol-4(B)PT the posts available for direct recruitment is to be filled up through departmental workers without open advertisement but following the recruitment rules. The Govt. has also approved the relaxation of educational qualification to Class-V the proposal to carry out circle wise recruitment has also been accorded.
After elaborate discussion on the subject it was resolved to carry out limited recruitment circle wise without making any advertisement inviting fresh applications. The posts as allotted to each circle/establishments should be filled up as per the relaxation of educational qualification so granted (Class -V pass) on the seniority cum merit basis from amongst the departmental workers including the contractual, contingent and adhoc staff. The CCF will as per the seniority list pertaining to their respective circle for the purpose."
13. It is to be noted that the aforesaid policy decision was not challenged by the petitioners at any point of time. In pursuance of the aforesaid decision the Department of Environment and Forest, Govt. of Arunachal Pradesh, Itanagar issued various directions to the CCF for circle wise allotment of posts with a direction to fill up the posts of Peon from the existing contingent workers as indicated in the meeting held on 30.1.2015. As has been discussed above, the petitioners being aware about the proposed interview to be conducted by the concerned office have also approached the authority to hold interview centrally by CCF Office and not by circle wise and even one 10 of the candidate appeared before the authority. In the given background of the case such a contention by the petitioners that they were deprived of facing the interview is nothing but false pretext.
14. From the two office files No. FOR.82/E-5/B/99/IV(B) Pt and FOR.291/E-5/B /2015, it emerges that as per approval of the Govt. the 75% of posts available were filled up through departmental workers without open advertisement with relaxation of educational qualification to Class-V. The proposal to carry out circle wise recruitment was also accorded by the Govt. The State Govt. has the power to relax any provision of the recruitment rules in respect of any class or category of person as per Govt. of Arunachal Pradesh, Ministry of Personnel, Administrative Reforms and Training Department of Administrative Reforms, Itanagar vide notification dated 5.11.2008. Pursuant to the Govt. decision, guideline adopted by the Department by its meeting held on 30.1.2015, four posts of Multitasking Staff were filled up on merit cum seniority basis by the office of PCCF (Respondent No. 15 to 18) out of 21 working candidates and office of the DFO, Social Forestry Division also filled up two posts of Peon (respondent nos. 17 and 18) out of six candidates from their zone on the recommendation of DSC following recruitment rules. It appears that the entire process was initiated for better interest of the working casual employees like petitioners and selection was made as per approval of the Govt. as has been indicated above. There is nothing as such that the authority has acted adversely towards the interest of the petitioners by infringing their legal rights, rather the entire process was initiated on the back of representation, so submitted by the All Arunachal Pradesh Forest Workers Union dated 9.10.2012. Moreover the petitioners have not completed required period of 20 years as per Recruitment Rules to claim the post.
15. It is also noted that even prior to filing of the case the petitioners obtained information through RTI that the Govt. has approved the recruitment through DSC from amongst the existing working candidates in the department without open advertisement and all information as discussed above were also intimated. Instead of challenging the policy decision of the Govt., such a challenge by the petitioner in a camouflage manner is not maintainable.
16. As has been held in S.J.S. Business Enterprise (P) Ltd. -vs- State of Bihar and ors., reported in AIR 2004 SC 2421 suppression of material facts disqualified a litigant from obtaining relief under the extra ordinary jurisdiction under Article 226 of the 11 Constitution. In the instant case the petitioner has sought for an enforcement of their rights on the basis of the writ petition containing misleading and inaccurate statements. Such a calculated and designed suppression of material facts in order to secure relief, which if disclosed would have disentitled the petitioners to get the extra ordinary relief or in any case would have materially affect the merit on the reliefs so claimed, the writ petitioners are not entitled to get the relief as prayed for.
17. For the aforesaid reasons discussed above, the writ petition stands dismissed. No costs.
Return the official files to the learned counsel for the State Respondents accordingly.
JUDGE Nandi