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2009 DIGILAW 920 (GAU)

Dage Tarak v. State of Arunachal Pradesh

2009-12-22

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. M. Pertin, learned Counsel for the petitioners. Also heard Ms. G. Deka, learned Addl. Senior Govt. Advocate, appearing on behalf of State respondents and Mr. C. Baruah, learned senior counsel appearing on behalf of private respondent Nos. 4-7. 2. There are four petitioners; two of them are graduates in Mechanical and Civil Engineering and other two are Master Degree holders in Economics and Political Science. Being unemployed, they have been looking for suitable jobs. They plead, in these days of increasingly menacing unemployment problem, the respondent authorities fancied to appoint the private respondent Nos. 4-7 on officiating and contract basis to the posts of Assistant Inspector (Tax and Excise) without making any public advertisement for open interview. Further, they plead that the concerned respondent authorities regularised such irregular and illegal appointments of the private respondents and that too, by granting onetime relaxation of the relevant provisions of the existing Recruitment Rules vide Order No. TAX(E)/58/97 (Pt) 983 dated 26.11.2007. They take on this, what they called 'completely illegal and arbitrary' action taken by the respondent authorities that has deprived the deserving candidates like the petitioners of the right of being considered for public employment. 3. Mr. M. Pertin, learned Counsel for the petitioners, submits that the initial appointment of private respondent Nos. 4-7 on officiating and contract basis were made without any interview and selection and such appointments cannot be regularised unless recommended by the Arunachal Pradesh Selection Board/Public Service Commission through regular recruitment process. According to Mr. Pertin, both the initial appointment and subsequent regularisation of services of the aforementioned private respondents have been made without resorting to regular recruitment process. The respondent authorities had resorted to a 'pick-and-choose' policy in the matter of filling up the posts, in question, by regularising the services of the private respondents dehors the relevant Recruitment Rules. The relaxation of rules, constitution of Departmental Promotion Committee (DPC) and getting the private respondents' cases recommended for regularisation of services are all eye-wash only to make it appear that all have been done legally and properly. As an instance, it is pointed-out that one-time relaxation was made effective from a retrospective date, i.e., 26th November, 2007, whereas the Departmental Promotion Committee (DPC) which recommended regularisation of services of the private respondents was held on 23.11.2007. As an instance, it is pointed-out that one-time relaxation was made effective from a retrospective date, i.e., 26th November, 2007, whereas the Departmental Promotion Committee (DPC) which recommended regularisation of services of the private respondents was held on 23.11.2007. The decision of the DPC has taken place before relaxation of the Rules was extended/granted to the private respondents and as such, the regularisation so granted to the private respondent Nos. 4-7 cannot be treated as legal and proper. The principle of relaxation of a particular provision of law, according to Mr. Pertin, has been set-out by the Supreme Court in State of Orissa and Ors. v. Sukanti Mahapatra reported in AIR 1993 SC 1650 . As regards regularisation of service of ad hoc/contract/officiating employees, he cites the case of Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. reported in (2006) 4 SCC 1 wherein it has been held that absorption/regularisation or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees, appointed/recruited and continued for long in public employment dehors the constitutional scheme of public employment, cannot be made unless the recruitment itself was made regularly and in terms of the constitutional scheme. The learned Counsel for the petitioners argues that the aforesaid decision of the Supreme Court is applicable to the present case and the appointments/regularisation of the services of the private respondents is liable to be cancelled or set aside inasmuch as the initial appointments of the private respondents on officiating/contract basis were made without any interview and selection. 4. Explanation forth came in the counter affidavit of the respondent authorities. Ms. G. Deka, Addl. Senior Government Advocate appearing on behalf of the respondent authorities, submits that the respondent authorities admit that they appointed the private respondents initially on contract/officiating basis and subsequently, on the basis of their satisfactory performance of duties, regularised their services granting them one-time relaxation of relevant provision of the Recruitment Rules as permitted under Rule 5 of the Assistant Inspector (Tax and Excise) Recruitment Rules, 1997 (hereinafter referred to as 'Rules of 1997' in short) and on being recommended by the duly constituted Departmental Promotion Committee. The respondent authorities justified the said action being actuated by pressing urgency coined as 'administrative exigency of service' as the department concerned required immediate man-power to be deployed in various check-gates at the entry points bordering the neighbouring States for proper supervision and monitoring of entry of various goods and thus, to save the State Government from losing lots of revenue. The respondent authorities further say to justify that since recruitment process takes lot of time with financial involvement for finalising the selection process, the official respondents resorted to such appointment. They have it to say that the department concerned, on 7.3.2008, advertised for recruitment of 25 posts of Assistant Inspector, 4 posts of UDC and 14 posts of LDC-cum-Computer Operator and conducted the written examination on 8th and 9th November, 2008. The petitioners applied for the post, in question, and appeared in the interview but they could not qualify and filed the present writ petition out of frustration and, therefore, the same must be dismissed with cost. 5. Ms. Deka, further submits that there is no illegality or infirmity in the relaxation made by the respondent authorities inasmuch as the provision under the Rules has invested power to do so. Besides, a Division Bench, of this Court, in Tarik Doke and Ors. v. State of Arunachal Pradesh and Ors. reported in 2007 (3) GLT 293 held that the petitioners having participated in the selection process cannot turn round and challenge the legality or propriety of relaxation granted by the authorities concerned. According to her, the decision rendered in the aforesaid case squarely covers the present case and in that view of the matter, the instant writ petition is liable to be dismissed. 6. Mr. C. Baruah, learned senior counsel, appearing on behalf of the private respondent Nos. 4-7, relying on the averments made in the counter affidavit filed by the respondent authorities, submits that since the State Government had granted one-time relaxation of the particular Recruitment Rules and the services of the private respondents, aforementioned, have been regularised on the recommendation of the Departmental Promotion Committee (DPC), the legality of the same cannot be questioned, inasmuch as the power to relax has been given to the Government under Rule 5 of the aforesaid Rules of 1997, which is still in force. The said power was exercised by the Government to regularise the services of the private respondents faced by a particular situation to save the public revenue for the general public, at large, which has been adequately explained in the counter affidavit of the respondent State authorities. Mr. Baruah, also submits that the petitioners, as a matter of right, cannot claim appointment to the posts, in question, more so, when they could not qualify themselves in the written examination conducted for filling up the said posts. The learned senior counsel further submits that the petitioners have no locus-standi to challenge the regularisation of the private respondents' services and as such, the instant writ petition is liable to be summarily dismissed. 7. I have gone through and carefully considered the pleadings of the parties alongwith materials placed by them. There is no dispute that the private respondent Nos. 4-7 were initially appointed as Assistant Inspector (Tax and Excise) on officiating/contract basis in the year 2006-07. There is also no dispute to the fact that the writ petitioners applied for appointment to the said posts and also appeared in the written examination but they were not successful in their efforts. The advertisement concerned was issued on 7.3.2008 i.e. within 3-1/2 months from the date of regularisation of the services of the private respondent Nos. 4-7. The first question that may arise is as to whether the petitioners have locus-standi to challenge the impugned order regularising the services of the private respondents only because of the fact that the petitioners happen to participate in the recruitment process and they were found unqualified. In my considered view, the petitioners cannot be precluded from challenging the impugned regularisation order if the same is found to be, for reason(s), other than bona fide and dehors the Recruitment Rules. The conclusion on this issue could be arrived at after examining the validity of the impugned regularisation order. 8. The Government of Arunachal Pradesh framed the Recruitment Rules under the provisions of Article 309 of the Constitution of India and in the Schedule to the said Rules, the total number of posts and the method of recruitment have been explicitly provided. 8. The Government of Arunachal Pradesh framed the Recruitment Rules under the provisions of Article 309 of the Constitution of India and in the Schedule to the said Rules, the total number of posts and the method of recruitment have been explicitly provided. As per column 2 of the said Schedule, there are 14 posts of Assistant Inspector (Tax and Excise), for which, as per column 8, the educational qualification required is a Bachelor Degree from any-recognised University for non-APST candidate and Class 12 passed for APST candidate. As per column 11 of the said Schedule, 50 per cent of the post would be filled-up by promotion and 50 percent, by direct recruitment consisting of written test followed by viva-voce. The subjects for written test are General Knowledge, English Essays, Composition and Letter Writings, and Elementary Mathematics for 100 marks each and viva-voce of 50 marks. The private respondent Nos. 4-7 did not apply for and appear in the interview for recruitment to the said posts. The relaxation of Rules has been provided under Section 5 of the Rules of 1997 which is reproduced below: 5. Power to relax-Where the Governor of Arunachal Pradesh is of the opinion that it is necessary or expedient so to do, he may by order for reasons to be recorded in writing and in consultation with the Arunachal Pradesh Selection Board/Public Service Commission, relax any of the provisions of these Rules with respect to any class or category of persons. 9. In the Government counter affidavit, the reasons for regularisation of private respondents' services on relaxation granted by the Government have been mentioned but no order recorded by the competent authority for relaxation of the particular provision of law, has been furnished or placed before this Court at the time of hearing. There is nothing to dispute on the power of the Government to relax the Recruitment Rules but, at the same time, the Rules have made it incumbent upon the authorities concerned to record the reasons for such relaxation. The respondents concerned without furnishing a copy of the order or placing the same from the records, simply, made averments in the counter affidavit. The respondents concerned without furnishing a copy of the order or placing the same from the records, simply, made averments in the counter affidavit. In the paragraphs 6, 7, 8 and 9 of their counter, the respondent authorities have stated that there was an administrative exigency, immediate requirement of man-power to be deployed in various check-gates at the entry points bordering the neighbouring States for proper supervision and monitoring of entry of various goods and thus, it was necessary to regularise their services to save the State Government from losing revenue, etc.. The aforesaid averments in the counter affidavit must be borne on record and the respondent authorities are duty bound to place those records to establish their case that there was bona fide reason(s) and it should have been recorded by the competent authority for granting the relaxation. The Court would not accept such averments as correct and acceptable in absence of supporting materials borne on record. Mere statements that there was an administrative exigency and public interest in passing any order relaxing the particular provision of the Rules would not be enough to establish the pleaded case of the respondent authorities unless they substantiate the same by producing the relevant records. 10. It is to be noted that the private respondent No. 4 put in service for a period of 1 year and 10 months only, his joining date being 1.2.2006; and private respondent Nos. 5-7 put in services only for 9 months, their joining dates being 17.3.2007; between their initial appointment on officiating/contract basis and passing of the impugned regularisation order on 26.11.2007. No explanation has also been offered by the respondent authorities as to why the regularisation of services of private respondent Nos. 4-7 had to be passed just before 3-1/2 months of the date of issue of the advertisement for filling up the post in question alongwith other posts and as to why it could not be waited. And also, the compelling reasons, if any, for regularising their services without making them to apply for the posts and appear in the interview conducted by the department. It is clear that the respondent authorities passed the impugned regularisation order in a hasty manner on 26.11.2007, about 3 months prior to he issue of advertisement dated 7.3.2008. And also, the compelling reasons, if any, for regularising their services without making them to apply for the posts and appear in the interview conducted by the department. It is clear that the respondent authorities passed the impugned regularisation order in a hasty manner on 26.11.2007, about 3 months prior to he issue of advertisement dated 7.3.2008. Unless the respondent authorities can give valid reason(s) for doing so on administrative exigency and in public interest, such action cannot be sustained as fair and legal. It is no doubt clear from the Rules of 1997 that the power of relaxation has been vested with the competent authority by the same is conditioned by reasons to be recorded in writing and in consultation with the Arunachal Pradesh Selection Board/Public Service Commission. As already discussed earlier, the respondent authorities could not place any record pertaining to recording of reason(s), if any, for such relaxation except the mentioning of recommendation of Departmental Promotion Committee (DPC) in the impugned order, dated 26.11.2007. 11. The provision for relaxation as provided in the Rules is similar to the provision provided in the Orissa Municipality Service (Method of Recruitment to posts of Lower Division Assistants in the Offices of Heads of Departments) Rules, 1975, which was the subject-matter in Sukanti Moliapatra's case (supra). In the aforesaid case, the respondent employees served for 12 years and they crossed the upper-age limit for entry into the Government service and their services were regularised on compassionate ground by relaxing the Rules. In the case at hand, no such situation has arisen inasmuch as the private respondent No. 4 has served for only 1 year and 10 months and private respondent Nos. 5-7 have served for merely 9 months each. In the case Tarik Doke, (supra), as relied upon by the learned Addl. Senior Government Advocate, it is held that relaxation itself having been provided, the grant of relaxation to the selected candidates is not to be interfered with. That was a case where sufficient number of candidates from the Scheduled Castes and Scheduled Tribes with requisite experiences, were not available, for which, in the interest of public service, the relaxation was granted. In the present case, such situation did not arise and the decision rendered in the aforesaid case would not be applicable to the present case. That was a case where sufficient number of candidates from the Scheduled Castes and Scheduled Tribes with requisite experiences, were not available, for which, in the interest of public service, the relaxation was granted. In the present case, such situation did not arise and the decision rendered in the aforesaid case would not be applicable to the present case. Least of all, it has also not been stated in the counter affidavit, by the respondent authorities that there was dearth of graduates or class-12 passed APST candidates. It has also not been clarified in the said counter affidavit as to the existence of administrative exigency for regularisation of the private respondents' services so hurriedly by relaxation of relevant Rules and as to why it could not be waited till initiation of the process for regular appointment/recruitment. 12. The purpose of relaxation of requirement in Rules for appointment of certain candidates is to mitigate the undue hardship in a particular case and to deal with a case in a just and equitable manner and to meet with a situation where requisite eligible and qualified persons are not available for appointment to a particular service/post. The Apex Court has laid down this principle in J.C. Yadav and Ors. v. State of Haryana and Ors. reported in AIR 1990 SC 857 . The same principles have been followed in K.K. Khosla and Anr. v. State of Haryana reported in (1990) 2 SCC 199 . In that case, the Government relaxed the relevant rules for extension of period for passing departmental examination prescribed under the service rules so as to remove undue hardship caused to the concerned employees. In the case of Sukanti Mohapatra, (supra), as discussed earlier, it has been made incumbent upon the Government to record the reasons, in writing, for relaxation and such relaxation, must be, in the public interest. 13. So far, the respondent authorities have not come forward with such record pertaining to the relaxation of the rules and services of the private respondent Nos. 4-7. The averments made in the counter affidavit to the effect that the Government took the decision in public interest and administrative exigency have not been substantiated by producing any record and in such a situation, it is difficult to accept the averments made in the said affidavit. 4-7. The averments made in the counter affidavit to the effect that the Government took the decision in public interest and administrative exigency have not been substantiated by producing any record and in such a situation, it is difficult to accept the averments made in the said affidavit. The Court, under such circumstances, can draw an inference that the Government never took any decision in that regard and come to a conclusion that the relaxation of rules and regularisation of private respondents' services, aforementioned, were made neither bona fide nor in the public interest or administrative exigency. The consequence of not producing the relevant record has been discussed in the State of Bihar v. Kumar Pramod Narian Singh and Ors. reported in (1997) 5 SCC 298 . It is held in the aforesaid case that the Court is not bound to accept the averments made in the counter affidavit if they are not substantiated by way of producing the relevant records. 14. From the discussions made above on the basis of observations and decisions of the Apex Court in regard to relaxation of Rules, it would not be difficult to come to a conclusion, in the present case, that, no such occasion arose, as to agree with the respondent authorities that there was real administrative exigency involving public interest inasmuch as the private respondent Nos. 4-7 put in less than 2 years service and the public advertisement for the post, in question, was issued within 3-1/2 months from the date of regularisation of their services and that undue hardship would have caused to them if they were made to participate in the regular recruitment process, which was held within 3-1/2 months, as stated above, from the date of their regularisation of services. It is also to be borne in mind that, after all, the initial 'contract/officiating appointments' of private respondent Nos. 4-7 were never made by way of regular recruitment and selection process. Less said is better on the questions of locus standi and estoppel, for, the instant petitioners have challenged the illegal action of the respondent authorities in the petition. It is also to be borne in mind that, after all, the initial 'contract/officiating appointments' of private respondent Nos. 4-7 were never made by way of regular recruitment and selection process. Less said is better on the questions of locus standi and estoppel, for, the instant petitioners have challenged the illegal action of the respondent authorities in the petition. It may not be justified to grant any relief to the present writ petitioners for appointment in place of the private respondents, aforementioned, but, they have also accrued a right to be considered for public employment and as such, they cannot be precluded from challenging the illegal onetime relaxation made by the authorities concerned for appointment of the private respondent Nos. 4-7 to the posts of Assistant Inspector ('Tax and Excise). 15. In view of the above, I find that the writ petitioners have been able to make-out a case for setting aside the impugned regularisation order, dated 26.11.2007, thereby, regularising the services of the private respondent Nos. 4-7, on the basis of illegal one-time relaxation granted by the concerned respondent authorities. Accordingly, the impugned regularisation order, dated 26.11.2007, stands quashed and set aside. 16. Now, in the interest of justice, the respondent authorities concerned are hereby directed to fill-up the aforesaid 4(four) posts of Assistant Inspector (Tax and Excise) by initiating regular recruitment process as required under the Rules of 1997 and till such time, the regular appointments are made, the private respondent Nos. 4-7, may be allowed to continue in service. The entire process shall be completed within a period of 4(four) months from 4th January, 2010. It is needless to say that the writ petitioners as well as the private respondents are at liberty to participate in the ensuing recruitment process, aforementioned, if they are, otherwise, not disqualified or ineligible. 17. With the above observations and directions, this writ petition stands allowed. There shall be no order as to costs.