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2002 DIGILAW 464 (GAU)

Hemanta Kumar Talukdar v. State of Assam and Ors.

2002-11-25

AFTAB H.SAIKIA

body2002
A.M. SAIKIA, J- Heard Mr B.K. Sharma, learned sr. counsel assisted by Mr U.K. Nair, learned counsel for the petitioner. Also heard Mr A. Thakur, learned State Counsel appearing tin behalf of the State-respondents. 2. The grievances narrated in this writ petition are that initially the petitioner was appointed in the post of Child Development Project Officer in the Social Welfare Department under Regulation 3(f) of the Assam Public Service Commission (Limitation & Functions) Regulation, 1951 (for short "the regulation) vide notification dated 7.8.93 with a condition that the petitioner was liable to qualify within the existing vacancies, in the next interview to be conducted by the Assam Public Service Commission (for short "APSC"), the respondent No. 3, failing which their services will be terminated and the same is evident from appointment notification dated 7.8.93 itself (Annexure-1 to the writ petition). But the petitioner's services was terminated w.e.f. 6.2.99 vide notification dated 6.2.99 on the ground of certain irregularities committed by him while working as Child Development Project Officer under 3(f) of the regulation without affording any opportunity of hearing. 3. When the petitioner was in service, in terms of his appointment, he took interview held by the APSC for regular appointment/regularisation in his service. He was selected and a select list in order of merit was prepared on 26.6.98 (Annexure-4 to the writ petition) for recruitment of 15 posts of Superintendent of Home/Child Development Project Officer/Probation Officer and allied cadre posts under Directorate of Social Welfare and Probation. Assam where the petitioner was placed at Sl. No. 3. According to him, the persons placed under him in the select list have already been appointed without considering his case for appointment despite his 3rd position. One Sri Pradyut Sarma who was placed at SI. No. 10 has also been appointed by the authorities in compliance of judgment and order dated 28.6.99 passed by this Court in Civil Rule No. 4268/98. It is also placed on record that other candidates namely, 1. Sri Deva Kanta Chetia, 2. Smt. Daisy Hazarika, 3. Sri Bhupesh Kumar Bharali, 4. Sri Sujit Kumar Nath, 5. Sri Debajit Borah and 6. Sri Dinesh Chandra Nath who were placed at SI. Nos. 4, 5, 8, 11, 12 and 13 respectively have also been appointed vide Notification Memo No. SWD 121/98/15 dated 4.3.99. Sri Deva Kanta Chetia, 2. Smt. Daisy Hazarika, 3. Sri Bhupesh Kumar Bharali, 4. Sri Sujit Kumar Nath, 5. Sri Debajit Borah and 6. Sri Dinesh Chandra Nath who were placed at SI. Nos. 4, 5, 8, 11, 12 and 13 respectively have also been appointed vide Notification Memo No. SWD 121/98/15 dated 4.3.99. The petitioner's case is that though his services has been terminated that too without giving any hearing to him, by such selection of APSC, he is entitled to for his appointment or regularisation in his existing post. 4. In this writ petition the petitioner has challenged the impugned order of termination dated 6.2.99 as well as for appointment/regularisation of his services in view of the selection on merit by the APSC as already mentioned above. 5. The argument of Mr B.K. Sharma, learned sr. counsel appearing on behalf of the petitioner is two fold. Firstly, he has forcefully contended that the petitioner's termination by the impugned order itself is ex-facie illegal and arbitrary and the same is liable to be quashed on the sole ground that the authority is not permitted to terminate the services of the petitioner without adhering to the principle of natural justice inasmuch as whether' an incumbent is a temporary appointee or an ad-hoc appointee, he is entitled to for reasonable and adequate hearing before such termination because it comes to him as a stigmatic and such termination is contrary to the established principle of law. To bolster his submission, reliance has-been placed on a decision of the Apex Court reported in V.P. Ahuja-Vs-State of Punjab and others (2000)3 SCC -239 wherein the Apex Court manifestly held that a probationer like a temporary servant is also entitled to certain protection and his services cannot be terminated arbitrarily or punitively without adhering to the principle of natural justice. In paragraph 7, it was held as under:- "7. A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principle of natural justice." 6. Advancing his second limb of argument, Mr Sharma has urged that despite the termination of the petitioner which seemingly stigmatic, he is entitled for appointment in view of his selection for the said post on merit in terms of his selection vide notification dated 26.6.98. Advancing his second limb of argument, Mr Sharma has urged that despite the termination of the petitioner which seemingly stigmatic, he is entitled for appointment in view of his selection for the said post on merit in terms of his selection vide notification dated 26.6.98. According to him, the petitioner having been placed at SI. No. 3 on merit and that too when the other candidates placed much below him have already been appointed, a right has been accrued to the petitioner for his appointment/regularisation to the said post. This Court finds enough force in the submissions of the learned sr. counsel for the petitioner. 7. The State-respondents have responded to the averments made by the writ petitioner by filing their response. The stand of the State-respondents is that services of the petitioner who was appointed purely temporarily on ad-hoc basis under Regulation 3(f) of the regulation, was terminated on the basis of certain specific charges as cropped up in the enquiry report submitted by the Enquiry Officer so appointed for such purpose and as such there is no illegality or irregularity committed by the State-respondents in terminating his services. On careful perusal of the affidavit-in-opposition of the State-respondents it is evidently clear that the services of the petitioner was terminated without giving him any reasonable opportunity of hearing, and he was terminated as he was found to be involved in serious irregularities which was never made known to the petitioner. The Govt. affidavit is totally silent as regards the entitlement of the petitioner for his appointment/regularisation in terms of his selection by the A.P.S.C. which was the condition for regularisation in terms of appointment notification dated 7.8.93. 8. Be that as it may, after carefully going through the select list dated 26.6.98 it clearly appears that the selection has been made for recruitment to 15 posts of which 5 (five) posts are reserved posts. O.B.C ... 2 posts S.C. ... 1 post S.T.(P) ... 1 post S.T.(H) ... 1 post, meaning thereby 10 posts are for the general category. That being so, the petitioner having been placed at SI. No. 3 is entitled for appointment to one of the existing posts when other candidates much below him as indicated above have already been appointed. O.B.C ... 2 posts S.C. ... 1 post S.T.(P) ... 1 post S.T.(H) ... 1 post, meaning thereby 10 posts are for the general category. That being so, the petitioner having been placed at SI. No. 3 is entitled for appointment to one of the existing posts when other candidates much below him as indicated above have already been appointed. This Court by its order dated 28.6.99 in C.R. No. 4268/98, as already referred above, allowed the writ petition filed by one Pradyut Sarma, who was placed at SI. No. 10, directing the authorities to appoint him in terms of the said select list. It is stated at the bar that the present case of the petitioner is equally and squarely covered by the said decision. Having gone through the said decision, the Court has no hesitation to approve the said submission made on behalf of the petitioner and accordingly, is of the view that the ratio of the case cited is very much applicable in the case in hand. 9. It is stated at the bar that vacancies are still available for making appointment/ regularisation of the services of the petitioner. Because out of 15 vacancies, so notified, till date only seven candidates have been appointed so far. When asked regarding validity of the select list which was published on 26.6.98 Mr. Sharma, learned sr. counsel has stated that this writ petition was filed on 24.2.99 during the currency of the select list which was due to expire on 25.6.99 and as such, the petitioner is entitled to the relief sought though the select list expired during the pendency of this writ petition. In support of his such submission the learned sr. counsel has cited decisions of the Apex Court in State of U.P.-Vs-Ram Swarup Saroj reported in (2000)3 S.C.C.-699. In the said case, the Apex Court held that the relief granted by the High Court could not be denied to the respondent merely because currency of panel expired during pendency of litigation, more so when vacancies were available for making such appointment inasmuch as the writ petitioner/respondent in that case moved the High Court within the validity period of the select list. Taking into account of such submission and in the light of the above decision, it is held that the expiry of the select list shall not be a bar for granting relief to the petitioner as sought in this petition which was admittedly filed during the currency of the select list. 10. Upon hearing the learned counsel for the parties and having regard to the judicial decisions cited above and on perusal of the materials available on record, this Court is of the considered opinion that the petitioner's earlier termination order dated 6.2.99 (Annexure-8 to the writ petition) which has admittedly been passed by casting a stigma on the petitioner) and also without giving any opportunity of hearing is totally illegal and arbitrary and the same is hereby quashed. Further it is directed that the authorities particularly the respondents 1 and 2 shall take all necessary steps to appoint or regularise the services of the petitioner on the basis of the select list dated 26.6.98 in the post of Child Development Officer in terms of his initial appointment letter dated 7.8.93 and also keeping in view the date of appointment of the other candidates appointed earlier despite having placed much below the petitioner in the select list on merit. 11. Compliance of this order be made within a period of one month from the date of receipt of this order. With the above direction and observations this writ petition shall stand allowed. However, I pass no order as to costs.