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2003 DIGILAW 160 (GAU)

Rup Ram Nath v. State of Assam

2003-04-09

RANJAN GOGOI

body2003
JUDGMENT Ranjan Gogoi, J. 1. Heard Mr. A. S. Choudhury, learned counsel for the petitioners and Mr. K. C. Mahanta, learned Govt. Advocate, Assam. 2. The case has a somewhat long history and an attempt is being made to recite the core facts. The petitioners, three in number, were retrenched from the department of Census in the year 1992. Thereafter, they were appointed as Grade-III employees in the offices under the Director of Social welfare and Probation, Government of Assam. The said appointments were conferred by the order dated 14.2.1995 (Annexure-6 to the writ petition) on a consolidated fixed pay of Rs. 900 per month. An advertisement was issued on 12th March, 1996 by the Director of Social Welfare for filling up of some vacant posts of Superintendents/Statistical Assistants. The petitioners participated in the said selection process which does not appear to have been taken to its logical conclusion. The petitioners, therefore, continued to serve in the aforesaid capacities. The cases of the petitioners were recommended by the authority of the State Government for regular appointment against the existing vacant posts of Statistical Assistants under the ICDS Project. This was done by a communication dated 3rd July, 2000 addressed to the Director of Social Welfare. As no positive action was forthcoming on the part of the Director of Social Welfare, the petitioners instituted a writ proceeding registered and numbered as W.P.(C) No. 6701/2000 before this Court. This Court by order dated 7.12.2000 disposed of the said writ petition with the following operative directions: "Having heard learned counsel for the parties, I dispose of the said petition with a direction that a certified copy and a copy of the writ petition be filed by the petitioners before the Director, Social Welfare, Assam who will consider the case of the petitioners for regularisation in existing post of Statistical Assistant under ICDS Projects, if vacant, as per existing rules/guidelines issued by the Govt. of India and pass orders within a period of 2 months from the date of receipt of the said copies. In case, the Director of Social Welfare, Assam is unable to regularise the said petitioners in the post of Statistical Assistant for some reason, he must indicate the said reason in the orders that are passed and communicate to the petitioners. In case the petitioners are aggrieved, they may approach this Court again. In case, the Director of Social Welfare, Assam is unable to regularise the said petitioners in the post of Statistical Assistant for some reason, he must indicate the said reason in the orders that are passed and communicate to the petitioners. In case the petitioners are aggrieved, they may approach this Court again. The petitioners will not be removed from the Grade III post in which they are working presently. No costs." 3. Pursuant to the aforesaid order passed by this Court, the Director of Social Welfare passed a consequential order dated 23rd March, 2001 (Annexure-21 to the writ petition) stating certain grounds for which the petitioners could not be given regular appointment as Statistical Assistants. By the aforesaid communication, however, the petitioners were offered alternative employment in the post of Lower Division Assistants, etc., and the said offer having been accepted by the petitioners, an order of appointment dated 29th March, 2001 was issued. Though the petitioners were offered regular appointment in other Grade-III posts by the Director of Social Welfare by his letter dated 23rd March, 2001, what was eventually conferred on the writ petitioners is ad hoc appointment for one year. In the meantime, as the authority had filled up the post of Statistical Assistants by giving appointments to the respondents Nos. 4, 5, 6, 7 and 8 against the said posts on ad hoc basis, the instant writ application has been filed. 4. The Respondent Nos. 4 to 8 inspite of due service of notice have not appeared before this Court. Mr. A. S. Choudhury, learned counsel for the petitioner submits that as this Court by interim order dated 17.9.2001 had directed that the ad hoc appointments of the private Respondent Nos. 4 to 8 were not to be extended beyond one year period for which ad hoc appointments were made, the authority had not extended the aforesaid ad hoc appointments of the private respondent Nos. 4 to 8. The aforesaid position is not being disputed by Mr. K. C. Mahanta, learned Govt. Advocate who however in all fairness submits lack of instructions from the authority. 5. The petitioners are retrenched employees of the Census Department and in accordance with the policy of the Government to offer suitable rehabilitation to such retrenched employees, the petitioners were initially appointed in the year 1995 on fixed/consolidated salary. K. C. Mahanta, learned Govt. Advocate who however in all fairness submits lack of instructions from the authority. 5. The petitioners are retrenched employees of the Census Department and in accordance with the policy of the Government to offer suitable rehabilitation to such retrenched employees, the petitioners were initially appointed in the year 1995 on fixed/consolidated salary. The authority of the State Government recommended the cases of the petitioners for regular appointment as Statistical Assistants. This Court by order dated 7.12.2000 passed in W.P. (C) No. 6701/2000 had issued similar directions requiring the Director of Social Welfare to pass a speaking order in the event the claims of the petitioners cannot be considered. Inspite of the directions issued by the authority of the State Government and the orders passed by this Court, the petitioners have again been given fortuitous employment by the order dated 29th March, 2001. The reasons assigned by the Director of Social Welfare in his order/communication dated 23rd March, 2001 (Annexure-21 to the writ petition) for not appointing the petitioners as Statistical Assistants can hardly inspire the confidence of the Court. The ground assigned that the petitioners cannot be appointed as Statistical Assistants as they had not been engaged by the Director of Social Welfare on casual basis can hardly be accepted as a valid ground for non-compliance with the orders of the Government as well as the directions issued by this Court. The conduct of the writ petitioners in accepting the alternative employment offered by the Director of Social Welfare, cannot in law operate as a waiver of the rights of the petitioners or as an estoppel against them. The petitioners being hard pressed had no alternative but to accept what was offered to them. The said employment offered by the authority not being in consonance with the orders of the Government as well as the directions of this Court, the situation will, therefore, have to be remedied. 6. In view of what has been discussed above, the Director of Social Welfare will now take all necessary steps to confer regular appointment to the petitioners against the post of Statistical Assistants that are stated to be lying vacant at present. 6. In view of what has been discussed above, the Director of Social Welfare will now take all necessary steps to confer regular appointment to the petitioners against the post of Statistical Assistants that are stated to be lying vacant at present. The directions for appointment of the petitioners as above have been issued by the Court in view of the fact that such entitlement of the writ petitioners has been decided by the State Government as communicated by the letter dated 3rd July, 2000 (Annexure-19 to the writ petition) as well as the order passed by this Court on 7.12.2000 in WP(C) No. 6701/2000. Consequently and in view of the foregoing discussions, this writ petition stands allowed as indicated above.