Gauhati High Court
Porna Bdr. Sonar And Ors. vs State Of Arunachal Pradesh And Ors. on 11 May, 2005
Equivalent citations: (2005)3GLR652
Author: Ranjan Gogoi
Bench: Ranjan Gogoi
JUDGMENT Ranjan Gogoi, J.
1. All the three writ petitions, being similar, were heard together and are being disposed of by this common judgment and order.
2. I have heard Mr. R. Deka, learned Counsel for the writ petitioners in W.P.(C) No. 135(AP) 2005, W.P.(C) No. 296(AP) 2005 as well as Mr. T. Son, learned Counsel appearing for the writ petitioners in W.P.(C) No. 291(AP) 2004. Mr. B.L. Singh, learned Senior Government Advocate, Arunachal Pradesh appearing for the official respondents in all the cases has also been duly heard.
3. The facts, in brief, may be noted at the outset.
A total of 104 petitioners have joined together in the present cases under consideration raising essentially a claim of regularisation of their services. The petitioners were appointed as Assistant Teachers in different Government Primary and Middle English Schools of the State pursuant to an advertisement published in the newspapers on 10.11,99. The advertisement issued stipulated the number of vacancies to be 225 and term/tenure of service to be up to 15th April, 2000. The proposed appointments were to be made on contract basis and it was explicitly stated in the advertisement issued that the contract appointments will be valid for the period specified and such appointments will not bestow any right on the incumbents to regular appointment. It was further stated in the advertisement issued that on completion of the contract period, the services of the incumbents would stand terminated automatically. On the basis of a selection held pursuant to the advertisement issued, the petitioners were appointed on different dates in the months of November, December 1999 and January 2000 as Assistant Teachers in the different Primary and Middle English Schools of the State. All the appointments were time bound up to 15th April, 2000/3rd week of April 2000 and were on a consolidated pay of Rs. 6490 per month. After the expiry of the tenure of appointment of the petitioners on 15th April, 2000/3rd week of April 2000, the services of the petitioners, however, continued though no written orders to that effect were issued. It is the admitted case of both sides that such appointments continued to remain in force until the early part of the year 2002, when the Government of India informed the State authority that after 31.3.2002, i.e., the expiry of the period of Ninth Five Year Plan, it will not be possible for the Central Government to continue to provide funds for payment of the teachers under the Operation Black Board (O.B.B.) Scheme. Thereafter, a policy decision was taken at the Government level to subsume the services of the petitioners under the Sarva Shiksha Mission and it is the common case of the parties that the petitioners are continuing to work under the Sarva Shiksha Scheme on a consolidated pay of Rs. 7200. In the meantime, by an advertisement issued on 3rd October, 2001 applications were invited, inter alia, for filling up of 66 posts of Assistant Teachers on contract basis for a period of two years. The incumbents in the said posts, who were appointed on contract basis on a fixed pay, having, been subsequently regularised in the year 2004 and the fate of the petitioners being uncertain and unknown,' the instant writ petitions have been filed praying for the reliefs earlier noted. An advertisement dated 27th May, 2004 inviting applications for filling up 84 regular vacancies of Assistant Teachers followed by the another advertisement dated 14th November, 2004 for the vacancies which had gone up to 111 in the meantime, issued by the respondents, have also been challenged.
4. The state has filed an affidavit in the cases, wherein, the stand taken is that all the posts in which the petitioners were appointed had been created under the Centrally sponsored O.B.B. Scheme. Sometime in the early part of the year 1999, a decision was taken by the State Cabined to create 225 posts of Assistant Teachers against the funds earmarked by the Central Government under the O.B.B. Scheme during the 9th Five Year Plan. As the financial ability of the State to continue to provide funds for the/aforesaid, posts after the expiry of the 9th Five Year Plan on 31.3.2002, was not very certain, the policy decision taken by the State Cabinet required the above appointment to be made on contracts basis with the explicit condition that the services of the contract employees would be terminable at the end Of the contract period. In the affidavit filed by the State-respondents, it has been further stated that after the petitioners had been so appointed against the posts created under the O.B.B. Scheme, they continued to be retained until 31.3.2002 as teachers appointed against the O.B.B. Scheme where- after, the said scheme having been discontinued and the Sarva Shiksha Mission having been launched, the services of the petitioners were subsequently subsumed under the Sarva Shiksha Mission. In the affidavit filed, the State has further stated that 181 posts of Junior Teachers created under the Centrally sponsored scheme of O.B.B. Scheme daring the period of 1980-87 and another 111 similar posts created during the period of 1988-89 were regularised by the State Government, in phases, as and when it was financially and economically viable to do so. The State, in the affidavit filed, has further stated that the 66 posts filled up on contract basis pursuant to the advertisement dated 3rd October, 2001 were regular vacancies in the State Service as distinguished from posts under any Centrally sponsored scheme. There was a need to fill up the said posts and as there was a ban on regular appointment, the advertisement was issued on 3rd October, 2001, proposing to fill up the posts on contract basis. The said posts were accordingly filled up. In the month of February 2004, a policy decision was taken by the Government to lift the ban on regular appointments. Thereafter, the 66 incumbents in question were regularised by duly adhering to the provisions of law. The said posts, 66 in number, are regular posts in the State Service and the regularization of the incumbents having been made in the facts noted above and by following the procedure prescribed by law, the State- respondents have contended that the petitioners should have no reason for any grievance on this score. The impugned advertisements dated 27th May, 2004 and 14th November, 2004 advertising 84 and thereafter, 111 posts of Assistant Teachers, which have been also impugned by the writ petitioners in the present writ petitions and in the Misc Case filed being Misc Case No. 73(AP) 2004, has been explained by the State- respondents to be regular vacancies arising in the cadre of Assistant Teachers in the normal course by death/retirement. In the affidavit filed, an urgency has been expressed with regard to the need to fill up the said posts covered by the advertisement dated 27th May, 2004 and 14th May, 2004.
5. The submissions advanced on behalf of the petitioners in all the cases under consideration, naturally, have been common. The two earlier batches of teachers appointed under the O.B.B. Scheme have already been regularised. The petitioners now have been serving for a period of 5/6 years. There are 104 aggrieved persons out of the group of 225 persons appointed pursuant to the advertisement issued. Ill regular vacancies in the posts of Assistant Teachers are available as evident from the advertisement dated 27th May, 2004 and 14th November, 2004. In such circumstances, the petitioners claim that they have a minimum right of fair consideration of their cases for regularisation which, according to the petitioners, have been breached by the State by letting the petitioners languish in hibernation and uncertainty and at the same time, in initiating a process to fill up the regular vacancies by issuing the advertisements dated 27th May, 2004 and 14th November, 2004. The rights of the petitioners to a fair consideration of their cases having been infringed, appropriate directions are required to be issued by this Court to ameliorate the grievances of the petitioners, the learned Counsels for the petitioners contend. Reliance in this regard has also been placed on a judgment of this Court in the case of Nirmali Bora and Ors. v. State of Assam and Ors., reported in 2002 (1) GLT 462.
6. Mr. B.L. Singh, learned senior State counsel appearing for the official respondents/ in the course of his elaborate argument, has taken the court through the contents of the counter affidavit filed by the respondents wherein the detailed facts and circumstances of the case have been recited. The learned Govt. Advocate has argued that the petitioners were appointed on contract basis with an expressed condition that their services were to remain valid for the period of contract service and further, that the petitioners would have no legal right to claim regularisation of service. So long as the financial position of the State has permitted, the services of the petitioners, who are presently engaged under the Sarva Shiksha Abhijan Scheme, have been continued. However, in view of the expressed conditions of service of the petitioners, no writ of Mandamus should be issued by this Court to compel the State to regularise the services of the petitioners inasmuch as such regularisation is primarily a question of policy, which has to be moulded on the basis of the resources available to the State.
7. The rival submissions of the learned Counsels for the parties have been duly considered. There is no manner of doubt that the petitioners are contract employees and have joined in the posts subject to the specific terms and conditions, which have already been noticed. This court has also noticed that though the petitioners' initial appointment was up to 15th April, 2000/3rd week of April 2000 and notwithstanding the dear term and condition of their appointment that their services was to be valid only for the period of contract service, the State did not so act to invalidate the appointments on the expiry of the stipulated period. Rather, the services of the petitioners were allowed to continue and are still continuing and in this manner, each of the petitioners, have, by this time put in nearly 6 years of service. If the services of the petitioners are to continue up to the end of the 10th Five Year Plan and there is no material for this Court to hold otherwise, each of the petitioners, by the end of that period, would have put in nearly 7/8 years of service. The claimed obligation of the State to consider the cases of the petitioners for regularisation, therefore, has to be examined and analyzed by the court on the above basis.
8. A discussion of the role of the State and the duties enjoined on it under our Constitutional scheme will hardly be necessary in the present case. It is a multifarious role with wide dimensional duties that is cast upon the State by the Constitution with the singular objective of achieving the maximum welfare of the majority of the citizens. The concept of fairness is like a golden thread that is inextricably wound up in our constitutional fabric, a position that is manifestly expressed by the specific incorporation of the provisions of Article 14. State duties, at times, are expressed by legal provisions made and enacted but in most situations, such duties inheres in a State, the dimensions and colour of which has to be necessarily understood in the context of the goals enshrined by the Constitution. Proceeding on that basis in the present case, this Court finds an explicit intention of the State, perhaps, in its quest to provide employment to the extent possible, to continue the employment of the petitioners, a fact that is apparent from the action of the State in not falling back on the expressed term of the petitioners' appointments in order to nullify the same on the expiry of the initial period of contract employment. Hope being generated, the process must, but, continue and the court will understand an obligation on the part of the State, from the long years of services rendered by the petitioners, to explore all possible avenues for the accommodation of the petitioners in regular; employment.
9. The next question that has to be addressed is whether the State has fairly considered the cases of the petitioners. The State has pleaded a case of financial stringency for its inability to regularise the petitioners but at the same time has indicated an imminent necessity fill up the posts advertised on 27th May, 2004 arid 14th November, 2004 on the ground that the regular vacancies in the schools cannot be allowed to continue in the interest of education of the school-going-children. The stand taken insofar as the posts advertised is correct but the question that looms large before the court is whether the posts advertised could not be filled up by considering the cases of the petitioners leaving the recruitment proposed by the advertisements to the vacancies that would arise in the event of the adjustment/accommodation of the petitioners against the regular vacancies. Two courses of option was/is open to the State, i.e., to regularise the services of the experienced teachers who have rendered long years of service or to get fresh talent from the open market leaving the experienced teachers in uncertainty. Naturally, the first option, i.e., to regularise the experienced teachers, who have rendered long years of service, would be a better option. This, however, is a matter of policy and it is primarily for the State to frame its policy in this regard. But policies, as may be framed by the State, must conform to Article 14 of the Constitution, which mandates the requirement of reasonableness and fairness in all Governmental actions. In the above noted circumstances, the order that this Court considers to be appropriate, just and equitable to be passed in the totality of the facts of the case, is to hold and declare that the petitioners have a right of a fair consideration of their cases for regularisation which needs to be enforced by requiring the State to so act in accordance with such policy as may be framed and until then, not to proceed with the impugned advertisements dated 27th May, 2004 and 14th November, 2004.
10. All the writ petitions shall stand closed in terms of the above directions.