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2008 DIGILAW 442 (GAU)

Dalmitaye (Patir) & Ors. v. State of Assam & Anr.

2008-06-13

B.K.SHARMA

body2008
B. K. Sharma, J.- The petitioners, numbering 3(three), are aggrieved by the order of termination of their services. The order was passed on 17.12.1999, but they are continuing in their services on the strength of the interim order passed by this Court on 22.12.1999. 2. There is no dispute that the petitioners were appointed as Grade-FV employees de­hors the recruitment rules. The orders of their appointment reflect the same. 3. By order dated 29.12.1998, the peti­tioners No. 1 and 2 were appointed as Sea­sonal Field Khalasi with effect from 2.1.1999. Thereafter, the petitioner No. 1 was ap­pointed as Film Developer by order dated 7.5.1999. Similarly, the petitioner No. 3 was also appointed as Grade-FV employee with effect from 19.7.1999 against a transfer va­cancy. The service of the petitioner No. 1 as Film Developer was dispensed with and there­after, she was re-appointed as Zinc Correc­tor. By yet another order dated 6.11.1999, the petitioner No. 2 was temporarily ap­pointed as Helper. 4. All the aforesaid appointments of the petitioners were temporary and dehors the recruitment rules. Their services were termi­nated by the impugned Annexure- 'B' series orders dated 17.12.1999. Being aggrieved, they filed the writ petition and presently, are continuing in their services on the strength of the interim order passed by this Court. 5. From the aforesaid fact, it is seen that the petitioners were so appointed purely on temporary basis for a limited duration. They did not even continue in their services for one year at the time of termination of their ser­vices but by now, have rendered 9/10 years of service on the strength of the interim order passed by this Court. 6. The respondents have filed their counter affidavit denying the contentions raised in the writ petition. Their stand is that the petition­ers were illegally appointed dehors the recruit­ment rules. On enquiry, it was found by the Government that the appointments were made by the then Director of Land Records, Shri J. C. Pegu without following the proce­dure and insisting on prescribed qualification. Having noticed the same, the Government by its letter dated 7.9.1999 issued direction for termination of such illegal appointments. Thereafter, the impugned order was issued terminating the services of the petitioners. 7. In the affidavit-in-reply, the petitioners have not denied the stand of the respondents that they were appointed illegally. Having noticed the same, the Government by its letter dated 7.9.1999 issued direction for termination of such illegal appointments. Thereafter, the impugned order was issued terminating the services of the petitioners. 7. In the affidavit-in-reply, the petitioners have not denied the stand of the respondents that they were appointed illegally. What they have contended is that since they have been continuing in their services for all these years, their services are required to be treated as regular. 8. I have heard Ms. B. Bhuyan, learned counsel for the petitioners as well as Mr. U. K. Nair, learned Standing Counsel, Director­ate of Land Reords. 9. While Ms. Bhuyan, learned counsel for the petitioner has placed reliance on the decision of this Court dated 28.2.2006 in WP(C) No. 6458/1999 (Rajib Kakati Vs. State of Assam & Ors.), Mr. Nair, learned counsel appearing for the respondents has placed reliance on the decision dated 10.2.2005 passed in WP(C)No. 6515/1999 (Ms. Ratnali Boro Vs. State of Assam & Ors.). 10. Both the aforesaid decisions pertain to the same department concerning termina­tion of services of the petitioners involved therein. In Rajib Kakati (supra), the order of termination was set aside by this Court on the ground that there was violation of prin­ciples of natural justice. The Court noticed that the petitioners in the said writ petition were holding Grade-III and II posts and they were appointed pursuant to advertisement and selection. It was in that context the Court found fault with the termination of their ser­vices. 11. Unlike the aforesaid case, in the in­stant case, the petitioners were appointed dehors the recruitment rules for temporary duration, hi Ratnali Boro (supra), the peti­tioners were aggrieved by same nature of ter­mination orders impugned in this writ petition. They were also the appointees like that of the petitioners. In that case also, they were ap­pointed dehorse the recruitment rules. As in the instant case, in that case also, the peti­tioners were continuing in their services on the strength of the interim order passed by this Court. Having regard to the said fact situ­ation, this Court declined to interfere with the orders of termination. However, it was pro­vided that in the event of filling up the posts, the respondents should consider the case of the petitioners along with other similarly situ­ated persons. Having regard to the said fact situ­ation, this Court declined to interfere with the orders of termination. However, it was pro­vided that in the event of filling up the posts, the respondents should consider the case of the petitioners along with other similarly situ­ated persons. It was further provided that in the event of finding that the petitioners are over-aged, the respondents would condone the age bar. 12. The aforesaid decision in Ratnali Boro (supra) squarely covers this case. The em­phasis put by the learned counsel for the pe­titioners on the long continuance of service of the petitioners, cannot be accepted. In the normal course, the petitioners continued in their services barely for one year and even less than that, but they have been continuing in their services on the strength of the interim order passed by this Court. As has been held by the Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi (3) re­ported in (2006) 4 SCC1, such "litigious employment" is of no consequence. The pe­titioners did not continue in their services on the strength of merit of their case, but they have continued in their services on the strength of the interim order passed by this Court. In the said case, it has been held that wide pow­ers under Article 226 of the Constitution of India are not intended to be used for the pur­pose of perpetuating the illegality, irregularity or impropriety. 13. As regards the plea of violation of the principles of natural justice, same will have to be understood in the background of the fact situation involved in a case. When the very appointment of the petitioners itself is in ques­tion, as has been held by the Apex Court in A. Uma Rani Vs. Registrar of Co-opera­tive Societies reported in (2004) 7 SCC 112 giving opportunity of hearing to the petition­ers would be a futile exercise. As has been held by the Apex Court in Madhya Pradesh Hasta Shilpa Vikas Nigam Limited Vs. Davendra Kumar Jain reported in (1995) 1 SCC 638 , temporary services terminated without notice would not attract Article 311 of the Constitution of India. In the instant case, the petitioners were appointed illegally by the then Director of Land Records. 14. Learned counsel for the petitioners also emphasized on the humanitarian aspect of the matter so as to contend that the matter needs sympathetic consideration. In the instant case, the petitioners were appointed illegally by the then Director of Land Records. 14. Learned counsel for the petitioners also emphasized on the humanitarian aspect of the matter so as to contend that the matter needs sympathetic consideration. As has been held by the Apex Court in Ahmedabad Munici­pal Corporation Vs. Virendra Kumar Jayantibhai Patel, reported in (1997) 6 SCC 650 , the sympathy or equality is out of place especially, where the selection is governed by statutory rules. If the plea of the petitioner is to be accepted, it will be open for the de­partment to favour any person or to appoint any person without following the procedure provided in the recruitment rules, which would also lead to nepotism and arbitrariness. 15. For all the aforesaid reasons, I do not find any merit in the writ petition and accord­ingly, it is dismissed. The interim order passed on 22.12.1999 stands vacated. However, it is provided that in the event of initiating any regular process of selection as per the recruit­ment rules, it will be open for the-petitioners to sit in the said selection and as has been provided in Ratnali Boro (supra), the respon­dents shall consider the condonation of the age bar of the petitioners if the same is re­quired to be done. 16. Writ petition is dismissed leaving the parties to bear their own costs.