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2003 DIGILAW 599 (GAU)

Dipak Kumar Sinha v. State of Assam

2003-12-22

BIPLAB KUMAR SHARMA

body2003
JUDGMENT B.K. Sharma, J. 1. Heard the learned counsel for the parties. By this writ petition the writ petitioner has prayed for a mandamus directing the respondents to regularize the service of the petitioner as Science Graduate Teacher on Sonapur Public M. E. School with effect from 30.01.1996. The petitioner was appointed by order dated 31.01.1996 as a Science Graduate Teacher in the said school for a period of three months. The terms of his appointment was further extended on two occasions by orders dated 28.06.1996 and 27.08.1996. As per the last extension the services of the petitioner continued till 30th October, 1996. The admitted position is that there is no further extension extending the service of the petitioner. Thereafter different correspondence were made asking for reports, etc., on the status of the service of the petitioner and other similarly situated teachers. In the mean time an advertisement was issued for filling up the posts of Assistant Teacher in provincialised M. V., M. E., M. E. Madrassa, Senior Basic, Junior Basic and Junior L. P. School of different districts of Assam. It is the case of the petitioner that he being fully eligible and qualified responded to the said advertisement and after acceptance of his candidature, he was directed to appear in the selection conducted by a Sub-divisional level Selection Board. However, nothing has been stated as to what transpired thereafter. 2. Mr. Borbhuyan, referring to the additional affidavit filed on 1.5.2001, has strenuously argued that at least two persons similarly situated like that of the petitioner have been granted favour by the respondents by way of regularization of their services. According to him the petitioner is entitled to similar treatment and his service be required is regularized. 3. Mr. Thomas, learned counsel for the Education Department, on the other hand submits that the petitioner was appointed only for a limited , period and that too on ad hoc basis. No right has accrued to the petitioner so as to claim regularization of his service. He further submits that regularization of service cannot be claimed as a matter of course. If such regularization is allowed the same will deprive other eligible candidates. 4. The Supreme Court in the case of Dr. M. A. Hague and Ors. No right has accrued to the petitioner so as to claim regularization of his service. He further submits that regularization of service cannot be claimed as a matter of course. If such regularization is allowed the same will deprive other eligible candidates. 4. The Supreme Court in the case of Dr. M. A. Hague and Ors. v. Union of India and others as reported in has observed as follows : "As against this, however we cannot lose sight of the fact that the requirement rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and the bypassing of the Public Service Commissions are permitted, it will open a back door for illegal recruitment without limit. In fact this Court has, of late, been witnessing a constant violation of the recruitment rules and a scant respect for the constitutional provisions requiring recruitment to the services through the Public Service Commission, It appears that since this Court has in some cases permitted regularization of the irregularly recruited employees, some Governments and authorities have been increasingly resorting to irregular recruitments. The result has been that the recruitment rules and the Public Service Commission have been kept in cold storage and candidates dictated by various considerations are being recruited as a matter of course." 5. Similar view has been expressed by the Apex Court in various other decision. In the case of Dr. Arundhati Ajit Pargaonkar v. State of Maharastra and. Ors. as reported in dealing with the case of the appointment therein who had rendered nine years of continuous service as recorded for, however, observed as follows : "Nor the claim of the appellant, that she having worked as Lecturer without break for nine years on the dated the advertisement was issued she should be deemed to have been regularized appears to be ill founded. Eligibility and continuous working for howsoever long period should not be permitted to over reach the law. Requirement of rules of selection through Commission cannot be substituted by humane considerations. Law must take its course. Consequently the appellant was not entitled to claim that she should have been deemed to have been regularized as she had been working without break for nine years." 6. Requirement of rules of selection through Commission cannot be substituted by humane considerations. Law must take its course. Consequently the appellant was not entitled to claim that she should have been deemed to have been regularized as she had been working without break for nine years." 6. The jurisdiction of the High Court while dealing with the writ petition, is circumscribed by the limitation discussed and declared by the judicial decision, and it cannot transgress the limits on the basis of whims or subjective sense of justice varying from Judge to Judge. It is true that the High Court is entitled to exercise its judicial discretion in deciding writ petition, but this discretion has to be confined within the limits of law and the High Court cannot grant relief swayed by any sympathetic consideration. 7. As regards the submission of Mr. M. Borbhuyan that some other have been granted favour by way of regularization who where similarly situated with that of the petitioner and thus, this Court should pass an order directing the extension of same treatment to the petitioner, the Court is not apprised of any other materials and as to why they were considered service for regularization. The concept of equal, treatment on the logic of Article 14 of the Constitution of India cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality (Refer (Union of India and Anr. v. International Trading Co. and Anr.). 8. The admitted position is that the petitioner was appointed on ad hoc basis for a limited period and after October 1996 there was no extension of his service. Though the petitioner has made some correspondence for regularization of his service, this Court cannot issue mandamus directing the respondents to regularize the ad hoc service of the petitioner. If this is done, there will be violation of Article 14 of the Constitution. Other candidates will be deprived of their rights. 9. Though the petitioner has made some correspondence for regularization of his service, this Court cannot issue mandamus directing the respondents to regularize the ad hoc service of the petitioner. If this is done, there will be violation of Article 14 of the Constitution. Other candidates will be deprived of their rights. 9. In view of the above discussion and position of law, this writ petition is dismissed. However, I make it clear that such dismissal of the petition will not preclude the respondents to deal with the case of the petitioner as they may deem fit and proper in accordance with the law. 10. No order as to cost. Petition dismissed