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2009 DIGILAW 510 (GAU)

Mukut Kalita v. State of Assam

2009-07-31

AMITAVA ROY

body2009
JUDGMENT Amitava Roy, J. 1. The Petitioner seeks the nullification of the order dated 30.10.2008 of the Commissioner of Transport, Assam, Guwahati, declining him to grant appointment to the post of LD Assistant in the said Department contending in addition for an order and/or direction to provide him therewith in compliance of the judgment and order dated 23.08.1999 passed by this Court in CR No. 2192/1997. 2. I have heard Mr. D.K. Sarmah, learned Counsel for the Petitioner and Mr. U. Rajkhowa, learned Standing Counsel, Transport Department, Assam (hereafter for short referred to as the department). 3. As the learned Counsel for the parties have advanced their arguments for final disposal at the motion stage on the basis of the materials presently available before this Court, this order would dispose of the instant proceeding on merits. In substance the Petitioner's pleaded version is that in response to an advertisement issued by the District Transport Officer, Kamrup in the year 1992 for filling up vacant posts of LDA-cum-Typist in the department, he offered his candidature, and following the completion of the selection process a select list of the successful candidates, on merits, was drawn up on 14.05.1992, in which his name figured at Sl. No. 14. As, according to the Petitioner, the departmental authorities resorted to pick and choose method in providing appointments, the select list notwithstanding, he approached this Court with CR No. 2192/1997, seeking for an appropriate writ and/or direction for his appointment. Meanwhile the candidates at Sl. Nos. 4, 5 and 7 of the select list, had also instituted CR No. 441/1995 and CR No. 1824/1996 with the same grievance. This Court by its judgment and order dated 23.08.1999 allowed the Petitioner's writ petition with a direction to appoint him to the post of LDA-cum-Typist in the Department. Though, no appeal was preferred against the same, the State Respondents sought a review of the said judgment and order but, this Court by its order passed in Review Application No. 106/2000 declined to do so. 4. Being aggrieved by the non-implementation of the directions of this Court as above, the Petitioner instituted contempt case being Cont. Case (C) No. 359/2000. 4. Being aggrieved by the non-implementation of the directions of this Court as above, the Petitioner instituted contempt case being Cont. Case (C) No. 359/2000. The stand taken by the Respondents in this proceeding, eventually, was that they had been rendered unable to implement the judgment and order dated 23.08.1999 in view of the rendering of a Full Bench this Court on 17.05.2006 in a batch of writ petitions, the lead case being 2006 (2) GLT 654 Shri Jitendra Kalita v. State of Assam, dwelling on the competing claims of regularization of the muster roll worker/work Charged employees in all Departments of the State and appointment of persons selected for common posts. The Respondents further pleaded that their interpretation of the above decision of the Full Bench being that thereby all select lists including the one dated 24.06.2003 had been set aside, no further action on the Petitioner's select list dated 14.05.1992 was warranted. 5. By order dated 18.08.2008 passed in Cont. Case (C) No. 359/2000, this Court noticing the above stand of the Respondents required them to place before it orders in writing on the basis thereof. Resultantly, the impugned order dated 30.10.2008 was passed reiterating the same stand. The Petitioner's claim for appointment on the basis of the select list dated 14.05.1992 and in terms of the judgment and order dated 23.08.1999 passed in CR No. 2192/1997 was negated. By order dated 11.02.2009 this Court dismissed the aforementioned contempt case observing that judged by the understanding of the decision of the Full Bench and the implication thereof, as comprehended by the Respondents, they could not be held to have acted in wilful defiance of the judgment and order dated 23.08.1999. 6. Mr. Sarmah, in the backdrop of the above progression of events has persuasively argued that considering the pleadings of the parties and the points for determination enumerated by the Division Bench and the Full Bench of this Court, decisions rendered in the said proceedings by these fora can by no means be construed to be a bar against the implementation of the judgment and order dated 23.08.1999 passed in CR No. 2192/ 1997. Referring to different portions of the decisions of both the Benches, the learned Counsel has endeavoured to impress upon this Court that neither the validity of the selection in which the Petitioner had participated nor the select list dated 14.05.1992 had ever been the subject matter of scrutiny in these proceedings and, therefore, the State Respondents are, per se, flawed in their understanding of the same and, thus, the impugned order dated 30.10.2008 is liable to be set aside. As the decision of the Full Bench does not stand in the way of the implementation of the judgment and order dated 23.08.1999 passed in CR No. 2192/1997, in the facts and circumstances of the case, the Petitioner is entitled to a writ of mandamus ensuring his appointment, he urged. In the alternative, Mr. Sarmah, has contended that in the teeth of the verdict of the Apex Court in Jyotish Koibarta v. State of Assam and Ors. (2009) 4 SCC 516 , the purported interpretation of the State Respondents of the decision of the Full Bench is misconceived. To reinforce of his arguments, the learned Counsel has also pressed into service the decisions of the Apex Court in Ka Ansari and Anr. v. Indian Airlines Ltd. (2009) 2 SCC 164 and State of Haryana and Ors. v. M.P. Mohla (2007) 1 SCC 457 . 7. Per contra, Mr. Rajkhowa has argued that a plain reading of the decision of the Full Bench delivered in Jitendra Kalita and Ors. v. State of Assam and Ors. 2006 (2) GLT 654 would demonstrate in clear terms that the selections taken note of by it in course of the adjudication included the one on the basis of which the Petitioner seeks appointment and that the same having been set aside as well, the instant petition is misconceived and is liable to be dismissed in limine. According to the learned Standing Counsel, having regard to the stalemate occasioned due to the rival claims for appointment/regularisation to the posts of LD Assistant in the Department by the muster roll workers/work Charged employees as well as the candidates selected, the Full Bench while observing the same had set at naught the selections that had figured in the pleadings of the parties. As the selection process of the Petitioner was also taken note of by the Full Bench of this Court in examining the questions posed, its decision is an insupperable bar to his appointment on the basis thereof, he contended. According to Mr. Rajkhowa, the decision of the Apex Court in Jyotish Koibarta (supra), being on a limited aspect of the debate before the Full Bench and unrelated to its determination vis-a-vis the selection process of the Petitioner, it is of no avail to him. 8. The pleadings available along with the documents on records as well as the emulous arguments have received the due consideration of this Court. That the Petitioner is one of the selectees, figuring in the select list dated 14.05.1992 and that by the order dated 23.08.1999 of this Court passed in CR No. 2192/1997, the State Respondents had been directed to appoint him in the post of LDA-cum-Typist under the Department, subject to the stipulations mentioned therein, is an admitted fact. The parties are not in issue that this order had become final, the application for review thereof, having been rejected. Whereas, the aforementioned direction of this Court awaited its implementation, a series of writ petitions came to be filed before this Court, including WP (C) No. 1554/2004 Shri Babul Ali and Ors. v. State of Assam and Ors. WP (C) No. 1684/2004 Karbi Student Union v. State of Assam and Ors., 2006 (2) GLT 654 Shri Jitendra Kalita v. State of Assam and Ors. etc., seeking various orders pertaining to the posts of LDA-cum-Typist in the department. Meanwhile, this Court on various other writ proceedings had passed orders for the regularization of the services of the muster roll workers/work charged employees of the Department on the basis of Government communications dated 18.04.1995 and 20.04.1995 vis-a-vis such posts. Directions were also issued for appointment of persons claiming to have been selected in the process undertaken by the department thereto. The multitude of such orders soon presented a situation, which according to the Department was unpermissive of the implementation thereof being mutilative of each other qua the posts involved. The writ petitions, as above, seeking adjudication of this Court implored for a range of reliefs further compounding the situation, which posed to be seemingly irressoluble. 9. The multitude of such orders soon presented a situation, which according to the Department was unpermissive of the implementation thereof being mutilative of each other qua the posts involved. The writ petitions, as above, seeking adjudication of this Court implored for a range of reliefs further compounding the situation, which posed to be seemingly irressoluble. 9. Before a Division Bench of this Court in sesin of the above writ petitions, the State Respondents filed a common affidavit in WP (C) No. 1554/2004 Shri Babul Ali and Ors. v. State of Assam and Ors. and WP (C) No. 1684/2004 Karbi Student Union v. State of Assam and Ors., highlighting the above facts with specific reference to several other writ proceedings carrying the orders of regularisation and appointment, which they perceived were not implementable in the prevailing facts and circumstances. In their affidavit, they inter alia, in categorical terms referred to WP (C) No. 2192/1997 instituted by the Petitioner and the order dated 23.08.1989 passed therein, the implementation whereof, is sought for in the instant proceeding. As referred to hereinabove, the posts involved in all the writ petitions were that of LDA-cum-Typist in the Transport Department of the State. 10. A Division Bench of this Court by its judgment and order dated 24.08.2004 on a scrutiny of the entire gamut of the facts constituting the corpus of the debate referred the issue to a Larger Bench to put a quietus to the lingering controversy and the resulting stalemate. The operative portion of the judgment of the Division Bench needs extraction for ready reference: 33. What emerges from the above discussion is that there are, broadly speaking two conflicting classes of orders passed in various writ petitions. While in one set of writ petitions, as indicated hereinabove. the directions are for regularisation of the services of the ad-hoc/ casual employees, the other set of writ petitions contain interim as well as final directions for giving appointments to selected candidates of the 1998 selection process. Hence, if the directions to appoint candidates from the 1998 selection process are carried out, the question of regularizing the services of the ad-hoc/casual employees would not be possible. At the same time, if the services of the ad-hoc/casual employees are regularized, as directed, the candidates, who have come on merit through a selection process, would not receive any appointment. Hence, if the directions to appoint candidates from the 1998 selection process are carried out, the question of regularizing the services of the ad-hoc/casual employees would not be possible. At the same time, if the services of the ad-hoc/casual employees are regularized, as directed, the candidates, who have come on merit through a selection process, would not receive any appointment. This apart, within the limited number of vacancies available, there are further directions for appointment on various other grounds as indicated hereinabove. In other words, if the Government attempts to carry out the directions contained for regularisation of the services, it would expose itself to proceedings of Contempt for not carrying out the directions given for appointment of selected candidates as well as for appointment of candidates directed on various other grounds. This impasse needs to be resolved. It is. therefore, in the fitness of the things that the matter is re-opened and examined by a larger Bench so as to pass appropriate and effective directions in order to put an end to the impasse and/or controversy, in question. In this backdrop, the Full Bench of this Court following an exhaustive and in depth scrutiny of the facts emerging from the pleadings available rendered its verdict on the essential facets of the protracted issues and summarised its conclusions in paragraph 28 of the judgment and order dated 17.05.2006 pronounced by it. The conclusions as contained therein deserve to be reproduced and are as hereinbelow : (1) The Office Memorandum dated 20.04.1995 does not reflect a valid policy decision of the State for regularisation of Muster Roll/Work Charged employees. No Muster Roll/Work Charged employees is entitled in law to seek and claim regularisation in terms of the aforesaid Office Memorandum dated 20.04.1995. (2) However, as a large number of regularizations of different categories of employees have already been effected in terms of the Office Memorandum dated 20.04.1995, considering the human factor involved, the Court does not consider it necessary to pass orders setting aside any of the said regularisations. However, there will be no further regularization in terms of the aforesaid Office Memorandum, dated 20.04.1995, and/or such other judicial order (s) for regularisation, passed, in this regard, but has not yet been implemented. (3) The Office Memorandum dated 20.04.1995 does not cover any category of employees other than Muster Roll and Work Charged employees. However, there will be no further regularization in terms of the aforesaid Office Memorandum, dated 20.04.1995, and/or such other judicial order (s) for regularisation, passed, in this regard, but has not yet been implemented. (3) The Office Memorandum dated 20.04.1995 does not cover any category of employees other than Muster Roll and Work Charged employees. No policy decision has been taken by the State with regard to regularization of different categories of casual/ contingent/ad-hoc employees working in the different departments of the State Government. Such employees are, therefore, not entitled to claim any regularisation either under the Office Memorandum dated 20.04.1995 or under any other Office Memorandum. (4) Casual employees of the Transport department in Grade-III posts are not entitled to regularization in terms of the Office Memorandum dated 20.04.1995 or any other Office Memorandum in force. (5) The selections held for filling up the vacant posts of LD Assistant in the Transport department including the select list dated 24.06.2003 is found to be illegal and therefore set aside. (6) The Court express no opinion with regard to the validity of the Cabinet decision dated 22.07.2005 or its implementation and execution. The matter will be considered, if required, at the appropriate time and stage. For coming to these conclusions the Full Bench traced the roots of the conundrum created by the competing claims for appointment of the Muster Roll Workers/Work Charged employees amongst others of the Department as well as candidates claiming to have been selected both to the posts of Lower Division Assistant-cum-Typist therein. It took note of the Cabinet decision adopted on 23.09.1983 to regularize Muster Roll Workers in all the Departments of the State as Grade-IV employees followed by an official communication dated 20.04.1995 of the Chief Secretary of the State requiring implementation of the said decision vis-a-vis Muster Roll Worker/Work Charged employees engaged prior to 01.04.1993. That this communication was followed by another Office Memorandum dated 11.10.1995 with strict instructions to all concerned not to engage any further Muster Roll/Work Charged employees after 01.04.1993, was also taken note of. The decision of this Court rendered on 23.09.1998 in CR No. 4411/1995, directing the State Respondents to implement the aforesaid policy decision was also referred to. That this communication was followed by another Office Memorandum dated 11.10.1995 with strict instructions to all concerned not to engage any further Muster Roll/Work Charged employees after 01.04.1993, was also taken note of. The decision of this Court rendered on 23.09.1998 in CR No. 4411/1995, directing the State Respondents to implement the aforesaid policy decision was also referred to. The Full Bench also noticed that the benefit of the above policy decision in principle, with time also stood extended to Grade-III posts and eventually a right for regularisation under the Office Memorandum dated 20.04.1995 stood recognized by this Court in favour of Grade-III worker on fortuitous basis, if engaged prior to the cut off date 01.04.1993. The fact that the Department had conducted selections to fill up the posts of Lower Division Assistant in the year 1992 and 1998 and various orders of this Court in writ petitions filed by such selected candidates directing their appointment on the basis thereof, was also taken note of. The resultant stasis in view of two sets of orders with a handful of posts rendering the Department unable to implement the same, was marked as well. 11. Though in the ultimate analysis, the Full Bench in the above background held that the Office Memorandum dated 20.04.1995 did not embody a valid policy decision of the State for regularisation of Muster Roll/Work Charged employees and declared that no such employee would be entitled to claim or seek regularization in terms thereof, it determined that the selections held for filling up the vacant post LDA in the Department including the select list dated 24.06.2003 to be illegal and consequently set aside the same. Notwithstanding that the text of the judgment of the Full Bench reveals a scrutiny, particularly of the facts bearing on the selection leading to the select list dated 24.06.2003, which eventually, was annulled, having regard to the sequence of events and the pressing exigency necessitating the reference to it for resolution, the Petitioner's plea that thereby his selection evidenced by select list dated 14.05.1992 had been left unscathed, is not convincing. The conclusion of the Full Bench in this regard as contained in paragraph 5 of the above extract when construed in the canvass of the foundational facts of the adjudication, does not permit such a truncated approach. The conclusion of the Full Bench in this regard as contained in paragraph 5 of the above extract when construed in the canvass of the foundational facts of the adjudication, does not permit such a truncated approach. The Full Bench in its visible endeavour to streamline the state of affairs prevailing in the Department had propounded its well considered decision in this regard, so as to relieve the authorities thereof of the quandary as to the steps required of them to implement the various orders of this Court, which in the attendant facts and circumstances were rendered impracticable to be effectuated. The words "selections" and "including" applied in Clause 5 within its embrace the Petitioner's selection as well. The Petitioner's plea, if sustained, would be repugnant to the pith of the adjudication made by the Full Court and reopen an issue decisively set at rest thereby. 12. The decision of the Apex Court in Jyotish Koibarta (supra), is of no avail to the Petitioner, inasmuch as, the same is confined to the select list dated 24.06.2003, which unmistakably is independent of the selection of the Petitioner. In other words, the decision of the Full Bench vis-a-vis the select list dated 24.06.2003, though stands interfered with by the Apex Court in the said reported decision, its (Full Bench) determination on other aspects do not stand invalidated thereby. 13. The averments made by the said authorities in Cont. Case (C) No. 359/2009 and in the order dated 30.10.2008, impugned in the instant proceeding depict a persistently consistent plea of theirs based on the decision of the Full Bench of this Court. The decisions of the Apex Court in State of Haryana (supra) and Ka Ansari and Anr. (supra), also are of no avail to the Petitioner in view of the legally sustainable understanding of the State Respondents of the decision of the Full Bench vis-a-vis his selection and their perception informing the impugned order dated 30.10.2008. As the verdict of the Full Bench qua the Petitioner's grievance has been construed by the State Respondents in the correct perspective, the impugned order in the considered opinion of this Court, does not warrant any interference. The petition lacks in merit and is, accordingly, dismissed. No costs.