Gauhati High Court
Md. Imdad Hussain & 29 Ors vs The State Of Assam And Anr on 9 December, 2014
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: WP(C) 5249 of 2014
1. Sri Ilen Gogoi,
S/o Prema Kanta Gogoi,
R/o Mahmara Konwargaon,
P.O: Balijan,
Dist- Sivasagar.
2. Sri Ashim Gogoi,
S/o Bhaba Gogoi,
Vill: Dupdor Bhitarual gaon,
P.O: Dupdor,
Dist- Sivasagar,
Assam.
3. Sri Dwipen Gogoi,
S/o Dimba Kanta Gogoi,
Vill: Belimukhea Dikshu,
P.O: Amguri (Chataisiga),
Dist: Sivasagar, Assam.
4. Sri Krishna Ram Hira
S/o Late Ahina Hira
Vill: Bengena ati,
P.O: Chotahaibor,
Dist- Nagaon, Assam.
5. Sri Mrinal Kr. Bora,
S/o Sri Umesh Ch. Bora,
Vill: Jagial,
P.O: Baligaon,
Dist- Nagaon, Assam.
6. Sri Dibakar Hazarika,
S/o Late Hareswar Hazarika,
Vill: Bamungaon,
P.O: Kamarbandha Ali,
Dist: Golaghat, Assam.
7. Sri Girindra Hazarika,
S/o Late L. Hazarika,
Vill: Ketekibari,
P.O: Ketekibari,
Dist- Sonitpur, Assam.
8. Md. Gulam Mustafa,
S/o Mohamad Sadeque Ali,
Vill: Kanchanpur,
P.O: Saidoria, Dist- Nagaon,
Assam.
Page 1 of 24
WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012
9. Sri Rintu Goswami,
S/o Late Kanak Ch. Goswami,
Vill: Korchung Satra,
P.O: Aibheti, Dist- Nagaon,
Assam.
...... Petitioners
-Versus-
1. The State of Assam,
Represented by the Principal Secretary to the
Government of Assam,
Transport Department,
Dispur, Guwahati-6.
2. The Commissioner of Transport,
Government of Assam,
Dispur, Guwahati-6,
Assam.
...... Respondents
WITH Case No: WP(C) 6050 of 2013
1. Sri Arabinda Barman, S/o Late Krishna Kanta Barman, R/o Vill- Tatikuchi, P.O: Sonaphuli, Dist- Baksa.
2. Sri Robindra Nath Das, S/o Late Achyut Chandra Das, Vill: Bijni Town, Ward No. 4, P.O: Binjni, Dist- Chirang.
3. Sri Jyotish Mahanta, S/o Bharat Chandra Mahanta, Vill: Ghopla, P.O: Kaniha, Dist: Kamrup.
4. Sri Sarat Kalita, S/o Basanta Kalita, Vill: Kulhati, Hajo, P.O: Hajo, Dist- Kamrup.
5. Sri Prasanta Saikia, S/o Durgadhar Saikia, Vill: Jalukgaon, P.O: Jalukgaon, Dist- Sivasagar.
Page 2 of 24 WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012
6. Sri Ratul Krishna Mahanta, S/o Late Nabin Mahanta, 11th Bye Lane West R.G. Baruah Road, Guwahati-24, Dist: Kamrup.
7. Sri Pranjit Das, S/o Lankeswar Das, Vill: Howly, P.O: Howly, Dist- Barpeta.
8. Sri Upen Borah, S/o Sri Tilak Ch. Borah, Vill: Panigaon, Poly Road, P.O: Nagaon, Dist- Nagaon.
...... Petitioners
-Versus-
1. The State of Assam,
Represented by the Commissioner & Secretary to the Government of Assam, Transport Department, Dispur, Guwahati-6.
2. The Commissioner and Secretary, Judicial Department, Government of Assam, Dispur, Guwahati-6,
3. The Commissioner and Secretary, Personnel (B) Department, Dispur, Guwahati-6.
...... Respondents
WITH
Case No: WP(C) 6114 of 2012
1. Md. Imdad Hussain,
S/o Lt Najmul Hussain,
Vill- Morabazar,
P.O: Morabazar,
Dist- Sivasagar.
2. Deepak Mahanta,
S/o Lt Lila Mahanta,
Page 3 of 24
WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 Vill: Gohpur, Dist- Sonitpur.
3. Bijit Nath, S/o Lt Khagen Ch. Nath, Vill: Hatighuli, P.O: Hatighuli, Dist: Sivasagar.
4. Pintu Ranjan Chutia, S/o Gangeswar Chutia, Vill: Nakhana Khanikar, P.O: Gourisagar, Dist- Sivasagar.
5. Mridul Borah, S/o Dhireswar Borah, Vill: Betioni Kakati Gaon, P.O: Golaghat, Dist: Golaghat.
6. Bibhab Deka, S/o Nandiram Deka, Vill- Ukhura Nalbari, Dist- Nalbari.
7. Ratul Krishna Mahanta, S/o Lt Nabin Mahanta, 11 Bye Lane West R.G. Baruah Road, Guwahati- 24, Dist- Kamrup.
8. Prasanta Saikia, S/o Durgadhar Saikia, Vill: Jalukgaon, P.O: Jalukgaon, Dist- Sivasagar.
9. Kaustavmani Borah, S/o Ganesh Borah, Vill: Napamgaon, P.O: Amguri, Dist- Sivasagar.
10. Prabhat Borah, S/o Mohan Borah, Vill- Lalkatani P.O:- Namti, Dist- Sivasagar.
11. Biswamohan Bhuyan, S/o Lombudhar Bhuyan, Vill- Bapakhat, P.O: Phukanarhat, Dist- Lakhimpur.
Page 4 of 24 WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012
12. Sri Keshab Baishya, S/o Manik Baishya, Vill- Pub Naharbari, Dist- Sonitpur, Assam.
13. Sri Arabinda Barman, S/o Lt Krishna Kanta Barman, Vill- Tatikuchi, P.O: Sonaphuli, Dist- Baksa.
14. Robindra Nath Das, S/o Lt Achyut Ch. Das, Vill- Bijni Town, W/No. 4, P.O: Bijni, Dist- Chirang
15. Bonshidhar Kalita S/o Ramesh Ch. Kalita, Vill- Sonapur, P.O: Nalbari, Dist- Nalbari.
16. Pranjit Das, S/o Lankeswar Das, Vill- Howly, P.O: Howly, Dist- Barpeta.
17. Jyotish Mahanta, S/o Bharat Ch. Mahanta, Vill- Ghopla, P.O: Kaniha, Dist- Kamrup.
18. Bhaskar Jyoti Bhuyan, S/o Tarun Ch. Bhuyan, Vill- Kakojan Tinikuria Gaon, P.O: Kakojan, Dist- Jorhat.
19. Sarat Kalita, S/o Basanta Kalita, Vill- Kulhati, Hajo, P.O: Hajo, Dist- Kamrup.
20. Deep Kr. Borah, S/o Pradip Kr. Borah, Vill- Hatigaon, Dispur, Dist- Kamrup.
21. Utpal Baruah, Page 5 of 24 WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 S/o Nitya Baruah, Vill- Joradhara, P.O: Dopdhar, Dist- Sivasagar.
22. Madhab Burhagohain, S/o Kumud Burhagohain, Vill- Namdang, P.O: Namdang, Dist- Sivasagar.
23. Ranjit Das, S/o Lt. Chakreswar Das, Vill- Samuguri, P.O: Samuguri, Dist- Nagaon.
24. Ranjan Hazarika, S/o Promode Hazarika, Vill- Pokamura Komargaon, P.O: Pokamura Komargaon, Dist- Jorhat.
25. Prithiraj Das, S/o Bhagiram Das, Vill- Ahatguri, P.O: Ahatguri, Dist- Morigaon.
26. Dipen Mazumdar, S/o Gojen Mazumdar, Vill- Kakopathar, P.O: Kakopathar, Dist- Tinsukia.
27. Deboranjan Saikia, S/o Bhogeswar Saikia, Vill- Sarupathar, P.O: Sarupathar, Dist- Golaghat.
28. Diganta Choudhury, S/o L.H.N Choudhury, Vill- Malikuchi, P.O. & Dist- Nalbari.
29. Pranab Chutia, S/o Lt. Roseswar Chutia, Vill- Khanikar Gaon, P.O: Namti Chariali, Dist- Sibsagar.
30. Upendra Kumar Borah, S/o Tilak Ch. Borah, Vill- Panigaon, Poly Road, Page 6 of 24 WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 P.O: Nagaon, Dist- Nagaon.
...... Petitioners
-Versus-
1. The State of Assam,
Represented by the Principal Secretary to the Government of Assam, Transport Department, Dispur, Guwahati-6.
2. The Commissioner of Transport, Government of Assam, Dispur, Guwahati-6, Assam.
...... Respondents
-BEFORE-
HON'BLE MR. JUSTICE N. CHAUDHURY
For the Petitioners : Mr. N Dutta
Sr. Adv.
Mr. SS Goswami
Mr. S Sharma
Ms. B Bhuyan
Ms. P Pathak
Ms. B Bora
Advocates
For the Respondents : SC, Transport
Mr. SS Dey,
Sr. Adv.
Mr. U Rajbangshi,
Advocate
Mr. G Sarma, GA
Date of Hearing : 11.11.2014
Date of delivery of
Judgment and Order : 09.12.2014
Page 7 of 24
WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 JUDGMENT AND ORDER (CAV) As many as 9 (nine) writ petitioners involved in this case were appointed on ad-hoc basis in the year 2001 either as Enforcement Checker or as Assistant Enforcement Inspector under the Transport Department of Assam. Their appointment letters have been annexed at Annexure- 1 to this writ petition which shows that as per the term of their appointment they were required to appear before Selection Committee to qualify for being regularized in service and their failure to qualify in the selection test would result in automatic termination of their service. The Commissioner of Transport arranged for a selection process in the year 2002 and the written examination was conducted on 03.02.2002 in which the present petitioners had also participated. This selection process came under challenge before this court in PIL No. 19/2002 and a writ petition, numbered as WP(C) No. 6000/2002. Although, this Court dismissed the writ petition and the P.I.L on 29.01.2003, the aggrieved persons went up to the Hon'ble Supreme Court invoking Article 136 of the Constitution and Civil Appeals No. 6093, 6085, 6098/2003 were registered thereby. Pursuant to a notice issued in those proceedings under Order I Rule 8 of the Code of Civil Procedure vide order dated dated 07.04.2003 passed by the Supreme Court, the present petitioners also participated in the proceeding before the Apex Court. The State of Assam informed the court in the aforesaid proceeding that Government was in favour of cancelling the examination and to hold a selection afresh. On such stand being taken by the State, the Civil Appeals were disposed of by order dated 04.08.2003 permitting the State of Assam to hold fresh examinations for appointment to the vacant posts of Assistant Enforcement Inspector (for short, 'AEI') and Enforcement Checker (for short, 'EC') under the Transport Department of Assam. However, it was provided that till such selection was made, all the ad-hoc appointees would be permitted to continue in the post held by them so far and "if they wished to be appointed regularly they must sit for the examination and if they are successful take the viva-voce test." Page 8 of 24
WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 2] After the aforesaid direction by the Hon'ble Supreme Court, State of Assam framed and promulgated a set of Rules on 07.10.2003 under proviso to Article 309 of the Constitution under the name and style of the Assam Transport Service Rules, 2003 (hereinafter referred to as 'the Rules') regulating the recruitment and conditions of services of the persons appointed to the Assam Transport Service. Rule 5(5) of this Rules deals with direct appointment to A.E.I. which provides that 75% of the posts in the cadre shall be filled up by direct recruitment in accordance with Rules 7, 8, 9 and 10. It is also provided that the balance 25% of the posts in the cadre shall be filled up by promotion from the cadre of E.C. in accordance with Rules 11, 14, 15, 16, 17 and 18. Rule 6 of the Rules provides procedure for direct recruitment which shows that direct recruitment to respective cadres would be made on the basis of recommendation by the Commission/Board as the case may be. The case of the A.E.I and E.C. being Class-III posts they are not required to be appointed on recommendation of Assam Public Service Commission (for short, APSC) and their recruitment is to be made on the basis of Selection Board as defined under Rule 2(b) of the Rules. The Rule 2(b) defines 'board' as 'selection board constituted under Rule 13' which on turn is the provision for constitution of board for promotion to the various ranks mentioned therein. A joint reading of Rule 13 and Rule 2(b), therefore, suggests that a selection board is to be constituted in the manner suggested under Rule 13 which would hold selection and make recommendation of names to the department for appointment to 75% of the cadre of A.E.I. The direct recruitment to the post of E.C. is to be done in accordance with Rules 7, 8, 9, 10, 14, 15, 16, 17 and 18 as provided under Rule 5(6) of the Rules. 3]. However, before constitution of a selection board prescribed under Rule 13, the Government issued an advertisement on 12.12.2003 inviting applications from intending candidates for filling up 32 (thirty two) posts of A.E.I. and E.C. The examination was to be held for 100 marks for written Page 9 of 24 WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 examination and 50 marks for viva-voce test. Examination was held on 26.06.2004 pursuant to this advertisement but this selection process also came under challenge in two writ petitions, namely, WP(C) No. 2594/2005 and WP(C) No. 5033/2004. This Court by judgment and order dated 19.07.2005 allowed the writ petitions and set aside the selection process and thus the second selection process initiated for filling up 32 posts of A.E.I. and E.C. came to an end and consequently the petitioners and other ad-hoc appointees continued working.
4] After cancellation of the second selection process, the official respondents issued another advertisement on 30.07.2005. As against this advertisement, a writ petition being WP(C) No. 6839/2005 was filed before this Court whereupon by order dated 23.09.2005 this Court permitted continuance of selection process but restrained the Government from publishing the results thereof. However, ultimately by judgment and order dated 21.06.2006 that selection process was also set aside and Government was directed to conduct a fresh selection in accordance with law. In the process, all the writ petitions, namely, WP(C) No. 6839/2005, WP(C) No. 5880/2005, WP(C) No. 7175/2005 and WP(C) No. 6602/2005 stood allowed. Government accepted the position and did not prefer any appeal. But four of the selected candidates of the said advertisement preferred writ appeal No. 249/2006 and 278/2006 before a Division Bench of this Court which allowed the writ appeals and directed the Government to declare results and to proceed with selection. The petitioners in WP(C) No. 6839/2005 went up to the Hon'ble Supreme Court vide S.L.P. No. 7175/2005 but ultimately the same was dismissed. After dismissal of the SLP, the selected candidates of the third selection process initiated by advertisement dated 30.07.2005, were regularly appointed and consequently all the ad-hoc appointees including the present petitioners were terminated from service w.e.f. 01.04.2008 which marks the second round of legal battle by the ousted ad-hoc appointees. Page 10 of 24
WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 5] According to the petitioners in the present writ petition, they rendered outstanding service to the Government and they deserved a special attention in recognition thereof. They claimed to have given heyday of their life at the alter of the State services and now having been over aged for fresh appointment, they approached the Government for creating posts and accommodating them against the newly created posts. Drawing attention of the Court to letter dated 19.07.2008 issued by the Commissioner of Transport to the Government (Annexure-7 to this writ petition) the petitioners claimed that a proposal was mooted by the Commissioner for creation of 50 posts of AEI and EC to accommodate 56 displaced ad-hoc appointees who had already rendered 7 years of service and that petitioners are included in them. The Government ultimately on 29.02.2012 sanctioned 100 posts out of which 50 posts were for AEI and 50 posts were for EC w.e.f. 29.02.2012. Creation of these posts was subject to five conditions which are quoted below:-
1. The ideal ratio of Assistant Enforcement Inspectors and Enforcement Checkers as per staffing pattern indicated in the proposal shall be maintained.
2. Budget provision is available.
3. The posts shall be filled up after creation of the proposed posts as per due procedures strictly in accordance with valid service Rules. Compliance of orders of Hon'ble Supreme Court in the case reported in 2006 4 SCC (State of Karnataka -VS- Uma Devi & Ors) & Civil Appeal No. A 7646-11724 of 1996 (Arising out of SLP(C) 8590-8576 of 1993) & other relevant orders.
4. Issue of advertisement for side publicity in news papers etc.
5. After observing all required formalities as per approval accorded by Fin (SIU) Department vide their U/O No. FSI.
4/2012 dated 16.02.2012.
6] Pursuant to creation of posts by notification dated 23.02.2012, Government issued advertisement on 01.12.2012 inviting applications in prescribed form from the intending candidates to fill up 50 posts of AEI and 50 posts of EC laying down the prescribed qualification. It was provided that age of the candidate should not be less than 18 years and not more than 38 years on 01.01.2012. However, in case of candidates belonging to Page 11 of 24 WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 SC/ST, the general age limit was extended to 43 years and in case of Ex- service men the same was extended to 40 years. The last date for filing of applications was fixed on 31.12.2012.
7] Challenging the aforesaid notification dated 29.02.2012 and the advertisement dated 01.12.2012, as many as 30 (thirty) AEI and EC of the aforesaid batch, filed WP(C) No. 6114/2012 before this Court. The notification dated 29.02.2012 has been annexed as Annexure-8 and the advertisement dated 01.12.2012 has been annexed as Annexure-8A of this writ petition. The petitioners of WP(C) No. 6114/2012 prayed that the Annexure-8 notification dated 29.02.2012 having been issued without reserving 56 posts for special selection condoning overage and advertisement dated 01.12.2012 (Annexure-8A) without making any reservation whatsoever for the petitioners and other similarly situated persons, should be set aside and quashed and respondents be directed to hold a special recruitment for the 56 numbers of AEI and EC out of the hundred posts so advertised. In the interim, it is also prayed that the selection process should be suspended during pendency of the writ petition. 8] On 17.12.2012, this Court admitted the writ petition for hearing by issuing rule and in the interim direction was issued giving liberty to the petitioners to file their applications for recruitment as AEI and EC together with applications seeking relaxation of upper age limit. It was mentioned therein that in the event of filing such applications for relaxation of upper age limit, the same be considered and necessary order be passed by the authority. The process of selection, however, was not stayed by this Court in the aforesaid writ petition. It appears that in view of the aforesaid interim order, the writ petitioners in WP(C) No. 6114/2012 filed application for relaxation of their upper age limit in order to participate in the recruitment process. The official respondents by order dated 08.07.2013 allowed the prayer for condonation of upper age limit of 22 (twenty) writ petitioners only who had crossed 38 years and did not Page 12 of 24 WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 cross 45 years but the upper age limit of 8 (eight) writ petitioners, namely, Arabinda Barman, Jyotish Mahanta, Robindra Nath Das, Sarat Kalita, Ratul Krishna Mahanta, Pranjit Das, Upendra Kumar Borah and Prasanta Saikia were not allowed on the ground that they had already crossed 45 years of age. Consequently, the 22 writ petitioners of the aforesaid writ petition whose upper age limit was condoned came up for consideration in the recruitment process. The other eight of those writ petitioners, thereafter, by filing Misc. Case No. 3419/2013 in the aforesaid writ petition reiterated their prayer for special recruitment of all the 56 persons within the advertised 50 posts of AEI and 50 posts of EC. By this miscellaneous case it was prayed that the order dated 08.07.2013 whereby prayer for condoning upper age limit of 8 writ petitioners was rejected be suspended during pendency of the writ petition. However, as the written examination was scheduled to be held on 25.05.2014, no interim order was passed by this Court as prayed for and rather, it was observed on 09.05.2014 that endeavour should be made to dispose of the matter on the next date. 9] In WP(C) No. 6114/2012 the respondent No. 2 has submitted an affidavit in opposition thereby denying the case of the writ petitioners. It is the case of the official respondent No. 2 that Government cannot go against the established law laid down by the Hon'ble Supreme Court denouncing exercise of statutory power under Article 162 of the Constitution of India contrary to the provisions of Assam Transport Service Rules, 2003 framed under proviso to Article 309 of the Constitution of India. It is stated in the affidavit that the Hon'ble Apex Court had already held in the special leave petition referred to above that the ad-hoc appointees of 2001 are at liberty to participate in the selection process if they intend to be appointed. This means that all these 56 candidates are at liberty to appear before the selection board and to compete with others. If they are selected by the selection board then and then only the question of their absorption in service would arise. In paragraph 14 of the affidavit in opposition, the official respondent has Page 13 of 24 WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 made reference to various judgments of the Hon'ble Supreme Court like Chanchal Goyal (Dr.) v. State of Rajasthan reported in (2003) 3 SCC 485, the case of S.V. Narayanappa reported in (1967) 1 SCR 128, R.N. Nanjundappa reported in (1972) 1 SCC 409 and B.N. Nagarajan reported in (1979) 4 SCC 507 along with Uma Devi (3) reported in AIR 2006 SC 1806 in support of his objection. The respondent No. 2 has also made mention of the case of Jitendra Kalita decided by a Full Bench of this of this Court in this regard.
10] The aforesaid 8 writ petitioners of WP(C) No. 6114/2012 thereafter filed WP(C) No. 6050/2013 separately and by making statements as to above facts, has prayed for issuance of appropriate writ so as to set aside and quash the notification dated 08.07.2013 (Annexure-9 of that writ petition) and also for giving direction to the official respondents to make one time age relaxation of upper age limit so as to enable them to sit in the written test and interview. This writ petition was admitted on 29.01.2014 and was fixed for hearing on 08.04.2014 along with WP(C) No. 6114/2012. 11] Since the WP(C) No. 6050/2013 and/or WP(C) No. 6114/2012 were not taken up for hearing and no interim order was also passed, the eight writ petitioners filed Misc. Case No. 1245/2014 praying for an interim order to enable them to sit in the examination supposed to be held on 25/05/2014. This Court by order dated 15.05.2014, passed in MC No. 1245/2014 granted an interim order permitting the writ petitioners of WP(C) No. 6050/2013 to sit in the written test to be held on 25.05.2014 on the condition that their results should not be declared pending disposal of the writ petition. It is stated that pursuant to the said order all the writ petitioners of WP(C) No. 6114/2012 including the eight writ petitioners of WP(C) No. 6050/2013 appeared in the written test on 25.05.2014 the result of which was declared on 19.09.2014 and 20.09.2014 in various newspapers. Roll numbers of the successful candidates were mentioned therein and they were asked to appear before the viva-voce proposed to Page 14 of 24 WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 commence on 16.10.2014 and to continue upto 18.10.2014. Call letters were also sent to the qualified candidates individually and it was further mentioned in the aforesaid newspaper publication that if any candidate did not receive the call letter latest by 13.10.2014, they might download the result from the website and contact the concerned office. The roll numbers of 109 candidates were shown as successful candidates in the results published in newspapers on 19.09.2014 and 20.09.2014. However, results of eight writ petitioners of WP(C) No. 6050/2013 were kept withheld in view of order passed by this Court on 15.05.2014 in MC No. 1245/2014 referred to above.
12] The writ petitioners of WP(C) No. 6050/2013 thereafter filed MC No. 2806/2014 praying for an interim order so as to restrain the respondent No. 1 of the main writ petition to conduct viva-voce scheduled to be held from 16.10.2014 to 18.10.2014 at the Office of the Commissioner of Transport, Assam at Guwahati till WP(C) No. 6114/2012 and WP(C) No. 6050/2013 were finally decided. However, no interim order was passed in the aforesaid miscellaneous case. This miscellaneous case, however, is still pending.
13] Situated thus, the official respondents held viva-voce test of all the candidates except the eight writ petitioners of WP(C) No. 6050/2013. This time by filing MC No. 2978/2014, the official respondents, as petitioners, prayed for leave to declare and publish the results of viva-voce test of candidates who appeared in the selection process for recruitment to the post of AEI and ECs along with consequential directions in respect of writ petitioners upon perusal of their results which were kept in sealed cover. In this application it is stated that as many as 54,663 candidates participated in the selection process and that because of non-appointment of AEI and EC, various districts were seriously suffering. It is further mentioned that 7 seven posts of AEI and 4 posts of EC have been kept withheld. According to the applicants of MC No. 2978/2014 arising out of WP(C) No. Page 15 of 24 WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 6050/2013, no prejudice would be caused to the writ petitioners in WP(C) No. 6050/2013 if results of other posts are declared. No order was passed in the same miscellaneous case as well and with the consent of the learned counsel for the parties, all the 3 (three) writ petitions were taken up for hearing together to put the dispute at rest. This miscellaneous case, therefore, is also pending.
14] I have heard Mr. N Dutta, learned senior counsel assisted by Ms. B Bhuyan on behalf of the writ petitioners in all the three writ petitions and Mr. SS Dey, learned senior counsel assisted by Mr. U Rajbongshi, the learned Additional Advocate General and Standing Counsel, Transport Department on behalf of official respondents. The learned senior counsel for both sides submitted that all the three writ petitions are based on same set of facts and can be taken up together. The three writ petitions, therefore, are heard together and disposed of by this common judgment. 15] Mr. N Dutta, learned senior counsel would argue that despite observations made by the Hon'ble Supreme Court in the case of Uma Devi (supra) and other judgments denouncing exercise of power under Article 162 of the Constitution giving gobye to the Rules framed under proviso to Article 309 of the Constitution, yet it is a clear case of hardship which this Court should consider so as to pass necessary orders for giving a direction to the official respondents to reconsider the plight of the writ petitioners. According to Mr. Dutta, the State respondents may be given a direction to consider the prayer of the writ petitioners for special recruitment to the posts of AEI and EC referred to above which were actually created keeping in view the prejudice caused to the discharge ad-hoc appointees. After all, the writ petitioners had been in service since 2001 and continued working till 31.03.2008. They have already crossed over age limit and there is no scope for them to be engaged in any other job. Moreover, at this stage they cannot be expected to compete with the fresh pass outs from college and university and so direction to the writ petitioners to sit in open competition Page 16 of 24 WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 along with fresh graduates would really mean denial of opportunity to them. These candidates who had worked for years together cannot, by any stretch of imagination, be considered to be equal to that of the candidates from the open market and so judging their performance vis-à-vis the performance of candidates from open market, would amount to treating unequals as equal which is also a violation of Article 14 of the Constitution of India. In the fitness of the things, therefore, the only solution is to consider the writ petitioners as a separate class and to hold a separate test for them, the learned senior counsel maintained. Mr. Dutta further submits that the petitioners having rendered service for about 7 years have gained experience which ultimately would go to the benefit of the State respondents once the petitioners are selected. The petitioners, therefore, stand on a better footing than the candidates from the open market. But this extra qualification of the petitioners has not been given any weightage by the respondents. Under such circumstances, it is necessary to issue direction to the State respondents to give an extra weightage to the petitioners having experience in the field. The learned counsel has placed reliance on the following judgments:
1. Amarendra Kumar Mohapatra and ors (2014) 4 SCC 583; para 34
-vs-
State of Orissa and ors
2. Harjinder Singh AIR 2010 SC 1116; para 23
-vs-
Punjab State Warehousing Corporation
3. Madhab Roy 2013 (2) GLT 886; para 18
-vs-
State of Assam and ors 16] Per contra, Mr. SS Dey, learned senior counsel representing the Transport Department would argue that the proposition put forward by the learned senior counsel for the petitioners would be a direct contravention of the law laid down by the Hon'ble Supreme Court in a catena of judgments some of which have been mentioned above. According to Mr. Dey, there is a set of Rules governing procedure for direct recruitment to the advertised posts of AEI and EC and so the State respondents have no authority or jurisdiction to deviate from the procedure prescribed under the Rules and Page 17 of 24 WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 to make a special selection taking recourse to power under Article 162 of the Constitution of India. Even the writ petitioners do not deserve a onetime consideration as contemplated under paragraph 53 of the case of Uma Devi (supra) in view of the fact that they have completed 10 years of service without intervention of the Court. According to Mr. Dey, the performance of eight writ petitioners of WP(C) No. 6050/2013 has been kept under sealed cover. The learned counsel showed the sealed cover to the Court and made request for considering the same to pass necessary orders which exercise, however, this Court declined to make. 17] Law in regard to regularization of service of ad-hoc employees vis-à- vis power of the Government under Article 162 of the Constitution of India is no longer res integra. Before the case of Uma Devi (3) reported in AIR 2006 SC 1806 Courts preferred to interfere when policy of ad-hocism was followed by the State for a long period without filling up posts on regular basis provided these ad-hoc appointments were made against sanctioned posts (see, Rattanlal v. State of Haryana, AIR 1987 SC 478). The necessity of sanctioned posts and available vacancies was recognized by the Supreme Court even earlier in the case of P.K. Narayani (Smt.) vs. State of Kerala (AIR 1984 SC 534) where the Court directed ad-hoc or temporary employees to appear in the next State Public Service Commission and allowed them to continue in service provided there were vacancies in which they could be allowed to work. In the case of Karnataka State Private College Stop-gap Lecturers Association case (AIR 1992 SC 677), the Hon'ble Supreme Court directed that they should be absorbed as and when regular vacancies arose. The necessity of sanctioned posts was also considered to be a relevant factor by the Supreme Court in the case of Dhirendra Chamoli vs. State of U.P. reported in (1986) 1 SCC 637. However, cases where representations were made by the employer at the time of making ad-hoc appointment that such persons would be absorbed by way of regular employment, came up for consideration in the case of Surya Narain Yadav vs. Bihar State Electricity Board (AIR 1985 SC 941), Supreme Court Page 18 of 24 WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 applied the equitable principle of promissory estoppels. In those cases where there are statutory provisions conferring status of temporary employee for rendering a particular period of service on casual basis and conversion of this status to permanent one on completion of a further particular period in temporary status was yet another consideration for regularizing services of employees not regularly appointed as applied in the case of Union of India vs. Basant Lal (AIR 1993 SC 188). In many of those cases, Supreme Court considered 'reasonably long spell' of service as an yardstick for absorption of ad-hoc employees. Of course, all these persons concerned were not directly intended to regularization on any of the aforesaid principles or reasons. They might still be entitled to regularization of their services by preferential opportunity of recruitment i.e. recruitment through appropriate channel against vacancies as and when such vacancies would arise subject to their satisfying the requisite qualifications prescribed under the Rules. The preferential treatment meant that such vacancies should ordinarily be filled up by regularizing such employees and not otherwise. Above all, the policy decision by the Government to regularize ad-hoc employees was also recognized by the Supreme Court in pre Uma Devi regime as in the case of Gurjinder Kaur vs. State of Punjab reported in 1984 (1) SLR 450.
18] The aforesaid principles holding the field before Uma Devi (3) (AIR 2006 SC 1806) have been substantially done away with either wholly or partially after Uma Devi (3) has come into play. After emphasizing the constitutional scheme relating to public employment as to equality of opportunity, the Supreme Court noted that such constitutionally mandated process cannot be bypassed by the Union and the State as well as their respective instrumentalities. Supreme Court did not accept the pro- regularisation policy earlier adopted by the Supreme Court in the Dharwad group of cases, of course, subject to some notable exceptions. First, where irregular appointments (the appointments which were not made in compliance with the prescribed procedure) have been made or continued Page 19 of 24 WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 but sanctioned posts were vacant or become vacant, the State would take immediate steps for filling those posts by regular process of selection (para 43 of Uma Devi) and secondly, in the situation covered by the first exigency when the regular recruitment is undertaken, the irregular would be allowed to compete, waiving age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the concerned department for a significant period of time. This the Constitution Bench did, however, in exercise of power under Article 142 of the Constitution of India to do complete justice to the affected parties. Uma Devi contemplates of two classes of cases, namely, those which were illegal (which were made in breach of substantive law or rules made under Article 309 of the Constitution or pursuant to a statutory delegation or binding administrative directions) and those which were made in a 'irregular manner' or on ad-hoc basis against an available vacancy which is already sanctioned (also see, Ashwani Kumar vs. State of Bihar; AIR 1997 SC 1628). The policy of invidualised justice by bypassing Article 14 and 16 of the Constitution and the constitutional scheme of equal opportunity has been prohibited by the Constitution Bench. The following extract from the Constitution Bench judgment may be referred as the best means for understanding its message:
"It is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee."
The argument of legitimate expectation of the irregulars has also been rejected by the Supreme Court in this case indicating that no argument in the line of Article 21 of the Constitution can come on the way of constitutionally mandated principle of equality of opportunity in public Page 20 of 24 WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 employment. In nutshell, rules framed under Article 309 of the Constitution or its proviso should be the only guiding principle for making public employment and no other means including recourse under Article 162 of the Constitution can be taken in this regard. 19] Having noted the aforesaid position of law laid down by the Constitution Bench in the case of Uma Devi (3) and more particularly of the direction given by the Hon'ble Supreme Court even in the present case giving liberty to the petitioners to participate in selection process, there is no scope to hold a different view. Except through the ongoing process of selection, the petitioners are not left with any other alternative to get back into the service under the State. Prayer made in the writ petition, therefore, for a special selection for the terminated ad-hoc employees does not appear to be feasible any more after Uma Devi (3). The next question comes as to whether the direction can be given to the Government for giving weightage to the petitioners for their past service. The judgments relied on by the learned senior counsel, Mr. Dutta in this regard as referred to above, do not appear to be applicable under the present facts. In the case of Amarendra Kumar Mohapatra (supra), Government of Orissa passed a validating Act under the name and style of Orissa Service of Engineers (Validation of Appointment) Act, 2002 by which as many as 881 ad-hoc Assistant Engineers of the State Engineering Service were regularized by the Government although, their official appointment was in breach of Orissa Service of Engineers Rules, 1941. The High Court of Orissa struck down the legislation but Supreme Court held that the legislation under challenge did not suffer from any constitutional infirmity and that High Court was in error in having struck it down. In the case in hand, the Government has not passed any validating Act and has rather terminated services of the ad-hoc employees. It is established law that Court cannot direct the legislature to make law. This being the position, the case of Amarendra Kumar Mohapatra does not have any application to the present case. In the case of Harjinder Singh (supra), Supreme Court Page 21 of 24 WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 noticed that there was a visible shift in the approach of the Courts while dealing with the cases involving interpretation of social welfare legislation. Supreme Court could not sustain the failure of the Courts in some of the cases involving industrial disputes to take a view in favour of 'tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood'. This case related to an industrial dispute and arose out of the award passed by the Labour Court. Labour Court had passed award in favour of the workmen and Supreme Court restored the same. Similarly, the case of Madhab Roy (supra) was in regard to appointment of peon in the Office of the District and Sessions Judge, Karimganj. The petitioners in that case were initially engaged as part time menial on daily wage basis and were allowed to continue with intermittent breaks. But the authority appointed pro-forma respondents on regular basis against the post held by them without considering the plight of the petitioners of the said writ petition. The Division Bench of this Court in that reported judgment, permitted continuance of the pro-forma respondents in their present capacity with a direction to the District and Sessions Judge, Karimganj to initiate a fresh process for regular appointment to the posts held by them strictly in accordance with law wherein the pro-forma respondents also would participate. The Division Bench gave liberty to the petitioners and the pro-forma respondents to file appropriate representation for condonation of their age bar in case they had crossed the age eligibility. Mr. Dutta, learned senior counsel for the petitioners in the present case has cited this judgment only to draw attention of this Court to the fact that in that reported case, Division Bench had directed the appointing authority to give due weightage towards past experience gained and services rendered by the parties while making final selection. It may be noted that the aforesaid direction was given in case involving appointment to the post of peon which is a job in menial nature and did not involve selection by written test and viva-voce. In the case in hand, the rules holding the field provides for selection in Page 22 of 24 WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 accordance with the scheme of selection prescribed by the Government by holding test or interview and undertaking scrutiny of particulars furnished by the candidates and other certificates and documents as may be considered necessary. The official respondents held written test of all the candidates and thereupon made a selection. The selected candidates thereafter were asked to appear for viva voce to judge their suitability. The Government, therefore, had chosen a particular procedure to find out the best and suitable among several thousands of candidates. The procedure is nothing but holding a written test on a set of question followed by viva voce test. If a procedure has been prescribed and it has been followed, there is no scope to hold that extra weightage be given to those candidates who had previously worked on ad-hoc basis. In the case of Madhab Roy (supra), the post was that of a peon and both the selected candidates and the writ petitioners therein were initially ad-hoc appointees. In that case, Division Bench found it necessary to give a direction to the employer to consider the past service of the candidates in judging their suitability for the post. In regard to appointment of the present petitioners, Supreme Court had already held that the petitioners would be at liberty to participate in the selection process if they intend to get back to the job. By saying so, Supreme Court desired that the writ petitioners would also compete in the same way like any other candidate from open market to ensure the constitutionally mandated principle of equality of opportunity in public employment. Having so found, this Court does not feel that any scope has been left even to give a direction to the Government to give extra weightage to the petitioners in view of their past service. The outcome of the selection process, therefore, shall only be a guiding factor for making appointment to the advertised posts of AEI and EC. 20] Since the eight petitioners have already been permitted to sit in the examination and they accordingly appeared, perhaps the ends of justice shall be met if the respondents declare their results and if they are found to be qualified in the written test, then they may also be considered for Page 23 of 24 WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012 viva voce. If, however, any or some of them are found to have qualified in the written test as well as in the viva voce to be held, the Government may consider their case for condoning the age bar under the special circumstances, referred to above and give them the benefit of their merit shown in the written test and viva voce. The Government shall declare results of the viva voce test of all candidates and thereafter proceed in accordance with law to make appointment strictly in accordance with merit, however, observing reservation policy.
21] Accordingly, the writ petitions stand disposed of in terms of the observations made hereinabove.
22] No order as to costs.
JUDGE BiswaS Page 24 of 24 WP(C) 5249 OF 2014 with WP(C) 6050 OF 2013 with WP(C) 6114 OF 2012