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2003 DIGILAW 346 (GAU)

State of Tripura v. Pradip Banerjee

2003-07-30

AFTAB H.SAIKIA, TINLIANTHANG VAIPHEI

body2003
ORDER A.H. Saikia, J. 1. Heard Mr. T.K. Ray, Learned Advocate General assisted by Mr. T.D. Majumder, Addl. Govt. Advocate appearing on behalf of the appellant's and Mr. S. Talapatra, learned counsel appearing on behalf of the respondents. 2. This writ appeal has been carried from the judgment and order dated 19.8.2002 passed by the learned Single Judge in Civil Rule No. 241 of 1993 by which the appellants were directed to regularise the services of the respondent No. 1, the writ petitioner in Civil Rule No. 241 of 1993 (hereinafter referred to as respondent) and to allow him to continue in his job. 3. Challenging the impugned judgment and order. Mr. Ray, learned Advocate General has forcibly argued that the respondent was appointed purely on ad hoc basis as a Lower Division Clerk under the establishment of Weights and Measures against the vacant post. The appointment letter issued to the respondent clearly reflected that his appointment was, being on ad hoc basis, only for three months. The offer of appointment was issued on 21.10.1992, when the formal appointment letter was issued on 17.12.1992 giving effect from 26.10.1992. But the learned Single Judge committed error of law as well as facts in directing the appellant to regularise the service of the respondent ignoring the above factual aspect and, as such, the impugned judgment ex facie suffers from perversity and illegality. According to him, the respondent was admittedly overaged at the time of his appointment and he himself made a prayer for relaxation of age by placing the matter before the Cabinet. It is contended that the respondent submitted application for appointment of Assistant Teacher on 29.9.1988. Though on that date, he was within the age limit, at the time of his appointment on 17.12.1992, he was already overaged. Further, since the petitioner had never asked for any appointment as Lower Division Clerk, his ad hoc appointment in the present post itself is a nullity. It is also submitted by the learned Advocate General that as the respondent was appointed purely on ad hoc basis only for three months commencing from 26.10.1992, he was to be terminated from service by 25.1.1993 as his terms was over on 25.1.1993, but he was allowed to continue for another few months by the local office due to the necessity of the Department but without any Govt. order. order. After 25.1.1993, the respondent does not have any legal right to continue in service. He has been continuing in his service on the strength of the interim order passed by this Court on 2.8.1993. Therefore, the question of regularisation of his service does not arise as directed by the learned Single Judge. It is further contended by the learned Advocate General that the learned Single Judge committed grave error of facts in holding that the respondent was going to be replaced by another ad hoc employee when neither of the party raised such issue of replacement by another ad hoc employee. 4. In order to bolster up the above submissions, learned Advocate General has drawn our attention to Annexure-1 to the Writ appeal - a note sheet being Note No. 3 - Ref. Notes 1 and 2 ante. For the sake of convenience the said note sheet (Annexure 1) may be reflected as under : "As suggested by Secy., Revenue Smti. Aditi Debbarma may be appointed against a vacant post of L.D.C. Shri Pradip Banerjee, S/O Lt. Sowrendra Banerjce C/O Shri Jyotirmoy Sengupta, Sarojprava Bhavan, Ajadhind Road, Dhaleswar, Agartala may be appointed against a vacant post of L.D.C. The date of birth of Shri Banerjee is 8.3.1957. As he has become over-aged, he may be appointed on ad-hoc basis urgently and later on, his case is regularised by relaxation of age as he is very needly and deserving and as his case was not looked into properly. Hon'ble C.M. may kindly approve the cases for issue of offer of appointed to the above one S.T. and one Gen. Candidate." 5. Relying on this note sheet, learned Advocate General has submitted that there were two vacant posts of LDC for which the names of two candidates including the respondents were processed by the concerned authority, but it explicitly goes to show that the respondent was over-aged, for which approval of the cabinet was necessary, but in the instant case the matter for relaxation of age of the respondent could not be placed before the Cabinet for approval. Hence the appointment of the respondent was itself void ab-initio. 6. Surprisingly, a bare perusal of the above note sheet would go to show that the respondent's case along with Smt. Aditi Debbarma, respondent 2 in the writ appeal, were considered by the Govt. Hence the appointment of the respondent was itself void ab-initio. 6. Surprisingly, a bare perusal of the above note sheet would go to show that the respondent's case along with Smt. Aditi Debbarma, respondent 2 in the writ appeal, were considered by the Govt. against two vacant posts and the respondent's case was considered for appointment against the vacant post being fully aware of the fact that he was over-aged. His date of birth was recorded as 8.3.1957. As per that Note, the authority decided to appoint the respondent on ad hoc basis urgently and to regularise his service later on by relaxation of age because he was very needy and deserving candidate. It further apparently shows that though the petitioner initially submitted application for appointment of Assistant Teacher as claimed by the learned Advocate General, Govt. itself processed the case of the respondent for appointment for L.D. Clerk taking into account the necessity of such appointment under the establishment concerned against the vacant post which was permanent in nature. It is upto the Govt. to relax the age of the respondent after his appointment, though admittedly he applied on 29.9.1988 when his age was within the required limit. 7. From the careful perusal of the materials available on record including the rival pleadings of the parties, it clearly appears that the Appellants appointed the respondent along with respondent No. 2, though on ad hoc basis for three months, against the vacant posts with all intention to regularise his post. From the submissions of the learned Advocate General, it also appears that after expiry of the said term of three months, respondent was also allowed to continue in his job by the authority concerned which expressly reflects that there has been the necessity of employment of the respondent in the service with continuity therein. The note sheet (Annexure-1) above mentioned also clearly indicates that the Govt. already proposed, at the time of processing the appointment of the respondent, to regularise his post by relaxation his age. Interestingly the cases of both the respondent and the respondent No. 2 were processed together for appointment against the two permanent vacant post and thereafter they were also appointed. As such the services of the respondent who being similarly situated with the respondent No. 2 could not be terminated merely on the ground that his appointment was purely on ad-hoc basis for three months. As such the services of the respondent who being similarly situated with the respondent No. 2 could not be terminated merely on the ground that his appointment was purely on ad-hoc basis for three months. Besides, the action of the appellants appears to be arbitrary and discriminatory because the respondent's service, apart from being an ad hoc appointment, was purportedly terminated holding him to be over-aged when the respondent No. 2 has been allowed to continue on temporary basis till date without being regularised as reflected from the affidavit-in-opposition filed by the appellants. As regards the relaxation of age, we fully agree with the views taken by the learned Single Judge. The age of candidate is required to be within the stipulated time, on the last day of filing the application. In the instant case, concededly, the respondent filed his application on 29.9.1988 on which date he was within his age limit. As such the question of relaxation of age does not a rise. Assuming he was over aged, which has also been noticed hereinabove in Annexure-1, the matter for relaxation of age of the respondent could have been placed before the Cabinet for approval again though the same could not be placed for Cabinet approval at the relevant time as submitted by the learned Advocate General. That being so, the purported termination of the respondent on the ground of over-age also is not tenable in law. 8. In view of what has been discussed and observed above, we are of the considered view that the learned Single Judge was absolutely justified in directing the appellant to regularise the services of the respondent and also to allow him to continue in his job. Accordingly, we do affirm the said direction. Consequently, this writ appeal is dismissed. Writ appeal dismissed.