Gauhati High Court
Bijoy Kr. Nath And Ors. vs Assam State Agricultural Marketing ... on 2 July, 2004
Equivalent citations: (2005)1GLR40
JUDGMENT B.K. Sharma, J.
1. This writ application is directed against the release of the petitioners from their Muster Roll employment under the respondents. They have also prayed for a declaration that they are regularised permanent employees of the respondents.
2. The seven writ petitioners were engaged as Muster Roll workers (Grade-IV) under the respondent No. 3 i.e. Dhekiajuli Regulated Market Committee. The first three petitioners were so engaged with effect from 1st December, 1998. While the 5th petitioner was so engaged with effect from 31st July, 2000. The remaining three petitioners were engaged with effect from 21st June, 2000. Although the petitioners have not annexed any copy of orders of engagement but have placed on records the letter dated 24.7.2001 by which the authorities of the Dhekiajuli Regulated Market Committee (DRMC) intimated the Chief Executive Officer, Assam State Agricultural Marketing Board (ASAMB) about their such engagement and the resolution adopted by the Market Committee to regularise their such engagement as Grade-IV.
3. By letter dated 20.2.2001, the DRMC requested the ASAMB to accord approval for regularisation of the services of the petitioners. This was followed by the impugned letter dated 19.2.2002 from the Chief Executive Officer, ASAMB to the Secretary, DRMC to release the Muster Roll Employees immediately. Thereafter the Secretary, DRMC intimated the Chief Executive Officer, that the Muster Roll employees i.e. the petitioners had been released with effect from 5.3.2002. In the letter, it was emphasised that there was immediate need of engagement of Muster Roll workers for working in the check gates and at the headquarters.
4. It is the legality and validity of the aforesaid action of the respondents which is under challenge in this writ petition. The respondent Nos. 1 and 2 i.e. the ASAMB have filed an affidavit-in-opposition. However, the DRMC i.e. the respondent No. 3 and 4 who in fact had requested for continuation o the services of the petitioners have not filed any return.
5. I have heard Mr. M. Nath, learned counsel for the petitioner and Mr. S. Saikia, learned Standing Counsel, ASAMB. Referring to the provisions of the Assam Agricultural Products Market Act, 1972, Mr. M. Nath strenuously argued that the services of the petitioners could not have been dispensed with at the behest of the Chief Executive Officer of ASAMB, more particularly when there was requirement for continuation of their services. He submitted that the DRMC having emphasised the need for regularisation of the services of the petitioners, the said Chief Executive Officer could not have insisted for their disengagement. Mr. S. Saikia, learned Standing Counsel, ASAMB on the other hand submitted that the petitioners having been appointed without the appeal of the ASAMB, their very induction to the service was illegal. He also placed reliance of the provisions of the aforesaid Act of 1972 in support of his submission that the DRMC exceeded in its jurisdiction to engage the petitioners as Muster Roll workers and even urging for regularisation of their services without the approval of the ASAMB and the State Government.
6. It was admitted at the bar that the petitioners were appointed by the DRMC without any advertisement and selection. It is also an admitted position that there was no approval for their such engagement from the ASAMB. As per the amendments brought in the year 2000 to the aforesaid Act of 1972, no new posts of any category shall be created by the Market Committee without obtaining prior approval of the State Government through the Board and no new appointment shall be made in any capacity in the Market Committee whether on fixed pay or on adhoc basis or otherwise, unless the post is approved by the State Government. Such a provision has been made by bringing amendment to Section 19 of the aforesaid Act of 1972. The Market Committee is also required to submit the respective lists of posts categorywise since its establishment for ex-post facto approval of the Government and the Board.
7. There is no dispute that the petitioners were engaged as Muster Roll workers under the DRMC due to exigencies of service and their such engagement was not against any vacancy. As per the stand in the affidavit, the services of the petitioners were terminated in terms of the amended provisions of Section 19 as noticed above. As per the said amended provisions, ex-post facto sanction of the Government is necessary for all the existing posts. The proposal for ex-post facto approval is required to be routed through the Board. As per the compositions of the Board and the Market Committees as enumerated in Chapter-II of the aforesaid Act of 1972, the Board has the power of superintendence and control over the Market Committees. The Board is also empowered to regulate the employment and conditions of service in respect of any or all the categories of officers and employees of the Board and the Market Committees. The Board is also empowered to coordinate the working of the Market Committees and affairs thereof including programmes undertaken by such Market Committees for the development of markets and market areas. Section 31(1) of the Act detailing the functions and powers of the Chief Executive Officer empowers him to exercise supervision and control over the officers and staff employed by the Board and the Market Committees in matters of administration, execution of works, maintenance of accounts etc. Thus as per the scheme as formulated under the Act of 1972, the Market Committees are under the deep and pervasive control of the ASAMB.
8. As per the provisions of the aforesaid Act of 1972 as it stood prior to amendment of 2000, every Market Committee was empowered to make appointment of such officers and staff as may be necessary for the management of the market. However, after the amendment of 2000 the requirement is that no new post of any category shall be created by the Market Committees without prior approval of the State Government through the Board. The Market Committees are also not empowered to make new appointment in any capacity whether on fixed pay or adhoc basis or otherwise unless the post is approved by the State Government. Further requirement is to submit the respective lists of posts category wise created since its established and before the date of coming into force of the amendment for ex-post facto approval of the Government through the Board.
9. It is in the above backdrop, it was argued on behalf of the petitioners that atleast first three petitioners who were engaged prior to the amendment of 2000 were entitled to continue in their services and their service particulars ought to have been sent for ex-post facto approval of the State Government. As regards the other petitioners, it was argued that the DRMC was competent to make appointment in the exigencies of service and thus there was no illegality in their engagement and if need be necessary relaxation should be extended to their case.
10. The entire scheme before or after the amendment of the 1972 Act relating to appointment is in respect of post. The entire emphasis both prior to amendment and after the amendment is in respect of posts only. The petitioners were only engaged as Muster Roll workers in the exigencies of service and not against any particular posts. It is on record that the respondent Nos. 3 and 4 resorted to such appointment of the petitioners in the exigencies of service. However, their such engagements were not against any posts. Both the pre-amended and the amended provisions deal with the particular methodology to be adopted by the Marketing Committees in respect of existing employees and in the matter of new appointments. A bare reading of the said provisions leave no manner of doubt that the same is pertaining to appointment against posts. The petitioners having been appointed as Muster Roll workers, naturally they were not appointed against any particular post. The very concept of Muster Roll employment is that such employees are engaged in the exigencies of service or to meet the urgent needs of the employer and their such engagements are not against any posts. If that be so neither the pre-amended provisions nor the amended provisions are applicable to the case of the petitioners and thus there no question of sending their names for ex-post facto approval of the State Government.
11. As per the scheme of the 1972 Act, the DRMC being under the deep and pervasive control of the ASAMB, the Chief Executive Officer was within his jurisdiction to issue direction to DRMC. Merely because the DRMC took a resolution or urged upon the Chief Executive Officer for regularisation of the services of the petitioner, he is not obligated to accede to the same. Regularisation of the services of the petitioners would naturally require posts to accommodate the petitioners. Their regularisation cannot be in air. It is within the exclusive domain and jurisdiction of the respondents to create or not to create posts and for that no mandamus can be issued. If the prayer for regularisation is to be accepted, same will naturally mean creation of posts by the respondents. Thus the prayer made by the petitioners for regularisation of their services cannot be accepted.
12. Coming to the impugned dis-engagement of the petitioners on the strength of the impugned letters dated 19.2.2002 and 5.3.2002, it is true that the services of the petitioners have been discontinued as instructed by the Chief Executive Officer. Such a situation came into being, when the DRMC made a request to him for regularisation. of the services of the petitioners. It has already been noticed above that the DRMC and for that matter all other Marketing Committees are under the deep and pervasive control of the ASAMB. The direction came to be issued on the face of the recommendations made for regularisation of the services of the petitioners. Such regularisation cannot be claimed as a matter of right. Various factors including financial implication are involved in the process. There is also no scheme for regularisation of the Muster Roll employees. In such a situation, I am not inclined to interfere with the decisions as contained on the impugned letters. However, it will be open for the respondents Nos. 3 and 4 to make such arrangement as may be necessary for smooth running and functioning of the market strictly in accordance with provisions of the Act and without burdening the Board or the State in any manner. However, no permanent appointment can be made by the DRMC of their own without the approval of the State Government through the Board as envisaged under the provisions of the 1972 Act.
13. Subject to the above observation, the writ petition stands dismissed leaving the parties to bear their own costs.