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2010 DIGILAW 262 (GAU)

Rongku Flago v. State of Arunachal Pradesh

2010-04-19

A.C.UPADHYAY

body2010
JUDGMENT A.C. Padhyay, J. 1. Heard Mr. M. Batt, learned Counsel for the Petitioner as well as Ms. G Deka, learned additional senior Government Advocate appearing for the State Respondents. 2. The Petitioner has filed this writ petition praying for setting aside the impugned order dated 04.01.2008, issued by the Secretary (Transport), Government of Arunachal Pradesh, Itanagar, by which the Respondent No. 3, Shri Sorang Abu, was appointed as Conductor on contract basis for a period of one year in the vacancy created due to death of late R. N. Talin, Ex-Conductor, State Transport Services, Seppa and also for regularization of the services of the Petitioner as Conductor in the State Transport Services Department. 3. The facts, leading to the filing of this writ petition, may be summarized, as follows: The Petitioner entered into service as contingent Night Chowkidar under the Station Superintendent, State Transport Services, Seppa on 26.11.1996. Since then, the service of the Petitioner was extended by subsequent orders and he is continuously serving in the Respondent's department for more than ten years till date. 4. It is submitted on behalf of the Petitioner that the Respondent authority utilized the services of the Petitioner for the post of Bus Conductor from the date of his initial appointment till date. The Petitioner also, in the process, gathered considerable knowledge and experience as Bus Conductor in the State Transport Services Department. Though the Petitioner submitted representation to the Respondent authority for regularization of his service, however, it was not considered by the authority concerned. It is further stated on behalf of the Petitioner that the Petitioner was allowed to officiate as leave substitute in the vacancy created due to sudden demise of late R. N. Talin, Ex-Conductor, State Transport Services, Seppa. Finally, the Respondent authority, by order dated 07.09.2007, approved the engagement of the Petitioner as Bus Conductor till filling up of the vacant post created due to the death of late R. N. Talin, Ex-Conductor, State Transport Services, Seppa. The order passed by the Respondent authority in connection with the engagement of the Petitioner on ad-hoc basis in the vacant post of late R. N. Talin may be reproduced for proper appreciation of the materials on record: GOVERNMENT OF ARUNACHAL PRADESH STATE TRANSPORT SERVICES NAHARLAGUN No. STD (E) 2274/2002/Dated 26th July, 2007 ORDER In continuation of this office order even No. dtd. 26.07.07 the following Leave substitute arrangement are hereby approved till filling up the vacant post of Lt. R. N. Talin, Ex-Conductor. STS, Seppa. 1. Sri R. Flago, Contg. Staff as L/S Conductor. 2. Sri Tarun Saikia as Contg. Paid staff. Sd/- K. Lollen, General Manager, State Transport Services, Naharlagun. MEMO No. STD(E)2274/2002/2260 Dated Naharlagun, the 7th Sept. 2007 Copy to: 1. The Station Supdt. STS, Seppa for information and necessary action. 2. Personal concern. 3. Office copy. General Manager, State Transport Services, Naharlagun. 5. Mr. M. Batt, learned Counsel for the Petitioner submits that the Respondent authority, without showing any reason and without any notice to the Petitioner removed the Petitioner from the leave substitute vacancy of late R. N. Talin, ex-conductor, by issuing appointment letter to the Respondent No. 3 on contract basis for a period of one year against the vacancy created due to the demise of late R. N. Talin, ex-conductor. Mr. Batt, learned Counsel further submits that the Respondent authority tried to replace ad-hoc appointment of the Petitioner by another ad-hoc appointment by ignoring their own direction, which is not permissible under law. 6. Ms. G Deka, learned additional senior Government Advocate appearing on behalf of the State Respondents has submitted that the Petitioner, being an ad-hoc employee on contract basis, is not entitled to be regularized in the service as Conductor in view of the decision of the Supreme Court in Secretary, State of Karnataka v. Umadevi: 2006(4) SCC 1 , employees of the Government Department engaged on temporary, casual, ad hoc or contract basis have no legal right to claim for their regularisation, absorption or continuance of such post on permanent basis. A regular process of recruitment or appointment has to be resorted to in order to fill up regular vacancies, in posts available at a particular point of time. In Secy., State of Karnataka v. Umadevi (3) (supra), Hon'ble Supreme Court emphasized that in a contract service the appointment comes to an end at the end of the tenure indicated in the contract, in such a situation the Courts should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. The relevant observation reads as follows: 43. The relevant observation reads as follows: 43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the Court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. Merely because an employee had continued under cover of an order of the Court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The Courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the by passing of the constitutional and statutory mandates. 7. In view of the decision of the Apex Court in Uma Devi (supra), as rightly indicated by the learned State counsel, the Petitioner, an ad-hoc employee cannot claim regularization of his service either on the basis of his performance or on the basis of his length of service as an ad-hoc employee. Therefore, the question of considering the prayer of the Petitioner for regularization of his service in the post of Conductor does not arise. However, it remains to be considered whether the Petitioner, who was serving in the Department on leave substitute arrangement in the vacant post of late R. N. Talin till filling up of the said post, could have been removed and replaced unceremoniously by another ad-hoc employment. 8. On perusal of the affidavit submitted by the State Respondents, it appears that the State Respondent has admitted the appointment order dated 04.01.2008 issued by the Respondent No. 1 appointing the Respondent No. 3 as Bus Conductor on contract basis for a period of one year. In the appointment order dated 04.01.2008, whereby the Respondent No. 3 was appointed as Bus Conductor in the vacant post of late R. N. Talin. In the appointment order dated 04.01.2008, whereby the Respondent No. 3 was appointed as Bus Conductor in the vacant post of late R. N. Talin. Very surprisingly, no justification or reason was assigned as to why the appointment order on substitute basis issued in favour of the Petitioner had to be cancelled and as to why Respondent No. 3 was favoured with the appointment order. The very action of the Respondent-State Government in replacing the ad-hoc appointment of the Petitioner by another ad-hoc appointment is apparently illegal, arbitrary and discriminatory. As a matter of fact, fairness, reasonableness and transparency are the foundation of democratic procedure which is the backbone of fundamental rights. The State-Respondent, in public appointment, is expected to be fair, reasonable and transparent in its dealings and activities. It cannot act like private individual. Action of the State Government has to be according to certain established healthy norms and standards and such actions should not be arbitrary, irrational and irrelevant. The impugned order dated 04.01.2008, by which the Respondent No. 3 was appointed, is devoid of any justification. Apparently the order must have been issued at the instance of some interested person to favour some individual. Though the Petitioner may not be entitled for regularization of his service, however, in terms of the Government order dated 04.01.2008, the Petitioner should not have been removed and replaced from ad-hoc appointment by another ad-hoc appointee without any cogent or reasonable cause, when the appointment letter of the Petitioner clearly spelt out that the Petitioner shall remain in the vacant post of late R. N. Talin till the filling up of the said post. 9. Learned Counsel for the Petitioner, drawing the attention of this Court to the additional affidavit filed by the Petitioner submitted that the appointment of the Respondent No. 3 has been extended from time to time. The Respondent department should not continue with ad-hoc appointments in regular posts for years together without valid reason to do so. If the Respondent authority is extending the contract appointment in the post, which fell vacant due to demise of late, R. N. Talin, ex-conductor, the Petitioner, who was holding the post on contract basis, deserve to be adjusted in the post until regular appointment is made. 10. If the Respondent authority is extending the contract appointment in the post, which fell vacant due to demise of late, R. N. Talin, ex-conductor, the Petitioner, who was holding the post on contract basis, deserve to be adjusted in the post until regular appointment is made. 10. The impugned order dated 04.01.2008, passed by the Respondent authority, appointing the Respondent No. 3 on contract basis in the post occupied by the Petitioner was extended vide order dated 16.06.2009 (annexure-P/18 to the writ petition) for one year w.e.f. 03.01.2009. The tenure of appointment of the Respondent No. 3 is also over. 11. Accordingly, in view of the above development, apparently Respondent No. 3 is not in service, therefore, no purpose would be served by interfering with the impugned order of appointment of Respondent No. 3 since the Respondent No. 3 availed and enjoyed the pay and other benefits in terms of the aforesaid order, during the tenure of his appointment on contract basis. However, in the facts and circumstances of the case, it is made clear that if the Respondent authority decide to extend the contract appointment in respect of the vacancy created due to death of late R. N. Talin, the Petitioner shall be given the preference of contract appointment in terms of the order dated 07.09.2007 issued by the Respondent department. 12. In Secy., State of Karnataka v. Umadevi (3) (supra), the Hon'ble Supreme Court has directed that the State should not be allowed to depart from the normal rule and indulge in temporary employment in permanent posts. Regular recruitment should be insisted upon, and only a contingency ad-hoc appointment be made in a permanent vacancy. But the same should be followed by recruitment and appointment. The Hon'ble Apex Court has further observed that appointment to non-available post should not be taken into consideration for regularization. Therefore, normally the State Government should not appoint persons on ad-hoc basis in regular vacancy. For the Courts, approving of such acts shall result depriving of many other from opportunity to compete for public employment. 13. The Hon'ble Apex Court has further observed that appointment to non-available post should not be taken into consideration for regularization. Therefore, normally the State Government should not appoint persons on ad-hoc basis in regular vacancy. For the Courts, approving of such acts shall result depriving of many other from opportunity to compete for public employment. 13. Therefore, in view of what has been discussed above and further considering the observations made by the Hon'ble Supreme Court in Umadevi case (supra), the Respondent authority is also directed to take necessary steps to fill up the regular vacancy of conductors in the Transport Department by resorting to regular process of recruitment, as early as possible, preferably within a period of Six months from the date of receipt of certified copy of this order. 14. This writ petition is disposed of with the above observations and directions.