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2004 DIGILAW 388 (GAU)

Deepak Das v. State of Assam

2004-06-05

AFTAB H.SAIKIA, P.P.NAOLEKAR

body2004
JUDGMENT P.P. Naolekar, C.J. 1. In these appeals, the common question of law arose in all the writ petitions that have been decided by one common judgment and order of the learned Single Judge. Therefore, all these writ appeals against that order are heard together and decided by this common judgment. 2. Facts in brief, material for the purpose of deciding the question involved are that the Appellants belong to the group of 41 persons, who were appointed under Regulation 3(f) of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951 (for short the Regulation 1951) on the post of Lecturers in different subjects in Diphu and Haflong Colleges. The order of appointment dated 23.03.2001 contained a stipulation that in the event they do not qualify in the Assam Public Service Commission (APSC) selection, they will not claim regularization of their services. After the Appellants were appointed the Government took up regular process or selection for appointment of Lecturers and published an advertisement in the news paper on 17.05.2001 inviting applications for filling up 114 posts of Lecturers in different subjects in the Government Colleges of the State of Assam. The Appellants took advantage and applied for the posts. The Appellants' name appeared in the select list which was published on 17.05.2002. As the Appellants were not regularized even after their names appeared in the select list, several writ petitions were filed by different persons belonging to the group of 41, 3(f) appointees, claiming regularization of their services on the ground that they being selected by the APSC, they fulfilled the conditions attached to their initial appointment order dated 23.03.2001 and, thus, they have a right to be regularized and the Government be directed to issue orders of regularization. The State Government has filed a common affidavit in the aforesaid cases wherein it has been stated that in terms of the orders of appointment of the Petitioners, they have been found to be qualified and as such the Petitioners may now be regularized. 3. While the matter was pending consideration, the Government issued an order dated 26.05.03. It is this order which is the subject matter of controversy between the parties in the present proceeding and thus, it would be appropriate to reproduce the same. 3. While the matter was pending consideration, the Government issued an order dated 26.05.03. It is this order which is the subject matter of controversy between the parties in the present proceeding and thus, it would be appropriate to reproduce the same. The order dated 26.05.03 reads: No. B(2)H260/2001/26: The Governor of Assam is pleased to regularize the ad-hoc appointments made under Regulation 3(f) of APSC, in respect of all the 41 Lecturers in Diphu and Haflong Govt. Colleges in relaxation of ban imposed by the Govt. vide O.M. No. 74/96/1, dt. 30.5.96 with the initial pay & allowances under UGC pay scale by relaxing the existing provisions of the Rules subject to the condition of further extension of their initial term of 4 months until the dated when the APSC had published the select list vide No. 265/ PSC/DR-1/1/2001-2002, dated 17.5.02. Sd/- Dr I. Saran, IAS Commissioner and Secy. to the Govt. of Assam Education (H) Department 4. Soon after the order dated 26.05.2003 was issued, the Government passed another order dated 30.06.2003 extending the ad-hoc services of the Petitioners after expiry of the initial period of four months from the date of appointment. By this order the period of ad hoc appointments have been extended up to 17.05.02 i.e. the date of publication of the select list. 5. On 30.08.03 the Government passed an order terminating services of 29 persons of the group of 41 ad-hoc appointees on the ground that though selected, the merit positions of them do not come within the zone required for appointment. Aggrieved by this order, writ petitions were filed by the Appellant, who have affected by the order dated 30.08.03. In those writ petitions two other orders both dated 30.08.03 giving appointment to the persons included in the select list against the post held by the Petitioners have also been challenged and the selected persons so appointed in place of the Petitioners have been arrayed as private Respondents in those writ petitions. 6. The learned Single Judge on the basis of the materials placed by the State demonstrating the necessity of issuing the order dated 26.05.03 dismissed the writ petitions, holding that the order dated 26.05.03 can only be construed to be a limited order of regularization of the illegal appointment of the Petitioner Appellants made under Regulation 3(f) of the Regulations, 1951 into regular appointment and dismissed the writ petitions. Aggrieved by the said common order, the present appeals have been filed. 7. The bone of contention of the respective parties are as per the Appellants, on plain reading of the order passed by the State Government on 26.05.03 it is apparent that the order dated 26.05.03 is an order regularizing the appointment of the Petitioners under Regulation 3(f) of the Regulations. Particularly so, when it is read with the admission made by the State in the writ petitions filed by the appellants for regularization of their services, where it has been stated that in terms of the order of appointment of the Petitioners they have been found to be qualified as such, the Petitioners may now be regularized and with the initial appointment orders where a condition has been put that in the event they do not qualify in the APSC selection they may not claim regularization of their services. 8. The Appellants were admittedly appointed for a period of four months as Lectures of Diphu and Haflong Government Colleges under Regulation 3(f) of Regulations 1951 from the date of their joining. There is a term appended to the appointment order, whereby the Principal of the Colleges were requested to take an undertaking from the appointees at the time of joining that they will not claim for regularization, in case they are not qualified in the APSC selection process. Regulation 3(f) of Regulation 1951 reads as under: 3 It shall not be necessary for the Commission to be consulted in matters relating to methods of recruitment to civil services and posts or the suitability of the candidates for such appointments, in the following cases, namely. * * * (f) when an appointment is to be made by direct recruitment to a temporary post created in a service if it is necessary in the public interest that the appointment should be made immediately and reference to the Commission would cause undue delay; provided that if the post has been sanctioned for, or is likely to last for more than four months, the Commission shall, as soon as possible, be consulted in all matters mentioned in Sub-clause (3) of Article 320 of the Constitution. It is obvious from the regulation 3(f) that APSC is not required to be consulted in matters relating to methods of recruitment to civil services and posts or the suitability of the candidates for such appointment, when the appointment is to be made by direct recruitment to a temporary post created in a service and immediate appointment is necessary in the public interest and in such exercise undue delay will be caused, if the requirement of consultation with the APSC is not given a goby. But if the post is sanctioned or is likely to last for more than four months, the Commission is required to be consulted as soon as possible. The appointment of the Appellants was made under Regulation 3(f) without consulting the APSC and it was sought to be extended beyond the period of four months. The order dated 26.5.03 indicates that the appointments were made when there was imposition of ban on appointment and probably without there being any emergency necessitating to by pass the reference to the APSC and/or because of the reason that the Government wants to extend the period beyond four months, that too, without referring the matter to the APSC. Therefore, the Government, for extension of the order of the appointments was required to regularize the 3(f) appointments by relaxing the ban imposed by the Government on any appointment and also relaxing the existing provisions of Rules. 9. On the other hand, the submission of the learned counsel for the Respondents is that the appointment order itself is a pointer to show the necessity of issuance of the order dated 26.05.03 regularizing the services of the Appellants when they cleared the selection according to Rules and their names appeared in select list of the candidates and on that basis the only meaning which can be attached to the order dated 26.05.03 is that of regularization of the services, of ad hoc appointment made in the exercise of powers under Regulation 3(f) of the Regulations. 10. Before the learned Single Judge, the Standing Counsel appearing for the Education Department of the Government has placed the record in support of the averments made in the Government affidavit and the learned Single Judge has recorded: 13. 10. Before the learned Single Judge, the Standing Counsel appearing for the Education Department of the Government has placed the record in support of the averments made in the Government affidavit and the learned Single Judge has recorded: 13. The records produced by the learned Standing Counsel in original in support of the averments made in the government affidavit to the effect that the order dated 26.05.2003 emanated from the approval granted by the Cabinet on 27.3.2003 to the memorandum placed before it, has been duly looked into by the Court. The aforesaid records reveal that one of the Petitioners Smti Kakali Khersa, submitted an application for extension of her 3(f) appointment beyond the initial term of 4 months. The Personnel Department of the State Government was moved for accord of approval for extension of the ad-hoc service of the said incumbent, where after the Personnel Department took the stand that as all the 41 ad-hoc appointments were made without a Cabinet approval during the period when a ban on such appointment was in force, the post facto approval of the Cabinet with regard to the initial 3(f) appointments should be obtained before consideration of the question of extension. The Personnel Department also clarified that the approval of the State Level Empowered Committee to the making of the 3(f) appointments, was subject to Cabinet clearance, which apparently was not obtained prior to making of the 41 appointments in question. The records placed before the Court, amply demonstrates that the initial 3(f) appointments of the Petitioners were cleared by the Chief Minister at his own level, at the instance of the Minister, Education and the appointees were virtually hand-picked by a committee constituted by the Minister, Education. The Principal Secretary as well as the Secretary, Higher Education disassociated themselves from the appointment process and at the instance of the Chief Minister and the Minister, Education, the appointment orders were issued by the Deputy Secretary. In such a situation, a Cabinet memorandum was prepared highlighting the objection of the Personnel Department as already noted and suggesting grant of post facto approval to the ad hoc appointment already made and for extension of the initial term of 4 months of the appointees. In such a situation, a Cabinet memorandum was prepared highlighting the objection of the Personnel Department as already noted and suggesting grant of post facto approval to the ad hoc appointment already made and for extension of the initial term of 4 months of the appointees. The said proposal was approved by the Cabinet where after the matter was referred once again to the Personnel Department for approval of the extension of the initial period of appointment of the concerned appointees. The Personnel Department on 13.5.2003 took the view that a notification in terms of the Cabinet Approval dated 27.3.03 be issued and thereafter a proposal for extension be re-submitted by the Education Department. As a sequel to the aforesaid note, the order/notification dated 26.5.2003 was issued and thereafter a fresh proposal for extension having been submitted to the Personnel Department and the concurrence/approval of the Personnel Department having been obtained, the subsequent order dated 30.6.2003 was issued. 11. A bare reading of the order dated 26.5.2003 only, it is capable of two interpretations as is being urged before the Court by the learned Counsel appearing for the respective parties. But when the order is read in the background in which it has been issued, there is no manner of doubt that the order dated 26.5.2003 was issued for regularizing the appointments given to the Appellants-Petitioner under Regulation 3(f) of the Regulation 1951 and in pursuance thereof, extension up to 17.5.2002. (Existence of the facts, which resulted in issuance of the order, dated 26.5.2003 can certainly be looked into by the Court, while construing the order, when the Court feels that there is ambiguity in the order or the language used in the order is capable of two or more meanings. The circumstance in which the order has been given birth is relevant and permissible limit, which can be take aid of while construing the order. 12. In the aforesaid premises, we do not find any infirmity in the judgment and order dated 28.11.2003 passed by the learned Single Judge. The appeals are dismissed. However, there shall be no order as to costs. Appeal dismissed.