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2011 DIGILAW 21 (GAU)

Amar Singh v. State of Arunachal Pradesh

2011-01-07

I.A.ANSARI, P.K.MUSAHARY

body2011
JUDGMENT I.A. Ansari, J. 1. Heard Mr. P.K. Tiwari, learned Counsel for the Appellants, and Mr. P. Taffo, learned Standing Counsel for Respondent Nos. 1 and 2. Also heard Mr. N. Taje, learned Counsel for Respondent Nos. 3 and 4. 2. An order, dated 16.4.2007, was published by the Public Works Department, Govt. of Arunachal Pradesh, directing encadrement of 10 posts of Junior Engineer of Public Works Department with the Department of Urban Department and Housing. Govt. of Arunachal Pradesh, on rotational basis for a period of three years. Following the publication of the order, dated 16.6.2007, aforementioned, another office order was made, on 28.11.2007, by the Public Works Department, Govt. of Arunachal Pradesh, whereby the present Appellants and the private Respondents, namely, Respondent Nos. 3 and 4 herein, were transferred, on encadrement basis, for a period of three years, to the Urban Development Department, Govt. of Arunachal Pradesh. Pursuant to the office order, dated 28.11.2007, the Appellants as well as the private Respondents joined their posts of Junior Engineer in the Urban Development Department, Govt. of Arunachal Pradesh. While the Appellants and the private Respondents were so serving in the Urban Development Department, an order was made, on 26.8.2009, by the Urban Development Department, Govt. of Arunachal Pradesh, permanently absorbing the private Respondents, namely, Nich Jacob (Respondent No. 3) and Tai Sangkio (Respondent No. 4), in the Department of Urban Development on the basis of no objection certificates obtained from the authority concerned to the permanent absorption of the private Respondents in the Department of Urban Development as Assistant Urban Programme Officer (AUPO). 3. On the absorption of the private Respondents, the Appellants, too, made representations seeking their absorption in the Urban Development Department and, in this regard, the Public Works Department issued to them (Appellants) too requisite no objection certificates to the Appellants' absorption in the Urban Development Department. Without, however, considering the cases of the Appellants for absorption, an order was made, on 14.5.2010, repatriating the Appellants to their parent department, namely, Public Works Department. 4. Aggrieved by the fact that the private Respondents had been absorbed, as indicated above, without considering the cases of the present Appellants, who had also been given no objection certificates in the same manner as had been given in favour of the private Respondents by the Public Works Department, Govt. 4. Aggrieved by the fact that the private Respondents had been absorbed, as indicated above, without considering the cases of the present Appellants, who had also been given no objection certificates in the same manner as had been given in favour of the private Respondents by the Public Works Department, Govt. of Arunachal Pradesh, the Appellants filed writ petitions under Article 226 of the Constitution of India, which gave rise to WP(C) Nos. 182 (AP)/2010, 185 (AP)/2010, 199 (AP)/2010, 228 (AP)/2010 and 316 (AP)/2010, challenging therein the absorption of the private Respondents, the ground of challenge being that the absorption of the two private Respondents were arbitrary, illegal and discriminatory in nature inasmuch as the private Respondents had been chosen without following any norm and that while considering the cases of the private Respondents for absorption, the cases of the writ Petitioners (the Appellants) who, too, were similarly situated, had not been considered at all, though the cases of the writ Petitioner (i.e., the Appellants) too ought to have been considered as they were similarly situated as the private Respondents. This apart, the Appellants also contended, in the writ petitions, that their repatriation was illegal and mala fide inasmuch as they had been brought, on rotational basis, for a period of three years and while two of the persons, who were so deputed, had been absorbed, the cases of the remaining deputationists had not been considered and they were, rather, sought to be repatriated without allowing them to complete their respective periods of deputation. 5. The State as well as the private Respondents resisted the writ petitions. Since it is the State Respondents, who have made the order of absorption, they were and they are in the best position to show as to why and how the private Respondents had come to be absorbed. In this regard, it is noteworthy that in para 6 of the affidavit-in-opposition, the State Respondents have, while denying that the writ Petitioners were being discriminated against, contended that the private Respondent Nos. 3 and 4 had been absorbed on the availability of two sanctioned vacant posts in the category of "first come, first serve" basis. In this regard, it is noteworthy that in para 6 of the affidavit-in-opposition, the State Respondents have, while denying that the writ Petitioners were being discriminated against, contended that the private Respondent Nos. 3 and 4 had been absorbed on the availability of two sanctioned vacant posts in the category of "first come, first serve" basis. Thus, the basis of absorption, according to the State Respondents, were two, namely, that there were two vacant sanctioned posts available for absorption and the absorption of the said two private Respondents were on the basis of "first come, first serve". 6. As far as the private Respondents are concerned, their case was that having been absorbed legally, the question of their absorption being disturbed does not arise at all. 7. By a common judgment and order, dated 30.09.2010, all the writ petitions having been dismissed by a learned Single Judge of this Court, the writ Petitioners have preferred the present five appeals, which have been heard together and are being disposed of by this common judgment and order. 8. While considering the present appeals, it needs to be borne in mind that a person, on deputation, has no indefeasible right to be absorbed by the borrowed department. This apart, the borrowed department cannot absorb a deputationist without the consent of the parent department. Even when these two conditions are satisfied, there is yet another condition imposed on the borrowed department, the condition being that the department, being a wing of the State, must conduct itself in a manner, which is fair and just to persons similarly situated. While, therefore, making any order of absorption of a deputationist, it is incumbent, on the part of the State, to ensure that all persons, similarly situated, are considered for absorption if they too are willing to be absorbed. A deputationist, as indicated hereinbefore, has no indefeasible right to demand his absorption, but he has, undeniably, a right to demand a fair treatment and a fair treatment would mean that he too be considered in the same manner and in the same way as the other similarly situated persons. 9. In the case at hand, the dates of joining of the Appellants and the private Respondents are as under: Sl. 9. In the case at hand, the dates of joining of the Appellants and the private Respondents are as under: Sl. No. Name Date of joining as AUPO 1 Ram Janam Tiwari 24.12.2007 2 Pratap Dandapat 16.01.2008 3 Vivai Kumar Rai 27.12.2007 4 Amar Singh 17.01.2008 5 Kipe Kamsi (Appellant No. 1) 01.01.2008 6 Mebom Ete (Appellant No. 3) 24.12.2007 7 Mebom Ete (Appellant No. 3) 14.12.2007 8 Tai Sangkio (Respondent No. 4) 24.12.2007 9 Nich Jacob (Respondent No. 3) 14.12.2007 10. Acareful examination of the pleadings of the parties and the materials on record show that the private Respondent No. 3, namely, Nich Jacob, joined the Urban Development Department on 14.12.2007 and the private Respondent No. 4, namely, Tai Sangkio, joined the said Department on 24.12.2007. Since the State Respondents contend that these private Respondents were absorbed by following the principle of "first come, first serve", we are bound to test the correctness of this statement. When we closely examine the dates of joining of the parties concerned, we notice that the Appellant, Jum to Nyodu, had joined the Urban Development Department on 14.12.2007; he was, therefore, similarly situated as Respondent No. 3 and his case could not have been ignored before opting to absorb Respondent No. 4, namely, Tai Sangkio, whose date of joining was much later inasmuch as Respondent No. 4 joined his post, on deputation, on 24.12.2007. This apart, even the Appellant, Mebom Ete, had joined his post, on deputation, on the same date, i.e., on 24.12.2007, as did private Respondent No. 4 and he (i.e., Mebom Ete) ought to have, therefore, been considered for absorption, along with private Respondent No. 4, namely, Tai Sangkio. 11. From what has been pointed out above, it is glaringly noticeable that though the State Respondents have claimed that the basis of absorption was "first come, first serve", this principle was really not followed. Thus, the State Respondents, while absorbing the private Respondents, did not consider the cases of the Appellants at all and did not follow any norm inasmuch as it can be seen from the above discussion that the question of absorbing Respondent No. 4 could not have arisen without considering the cases of the other Appellants. The act of absorption of the private Respondents cannot but be regarded as wholly arbitrary. 12. The act of absorption of the private Respondents cannot but be regarded as wholly arbitrary. 12. What logically follows from the above discussion is that the Appellants have been denied a fair treatment by the State Respondents and they were clearly discriminated against the private Respondents. No basis for the purpose of making absorption was, as a matter of fact, followed and that is why, the basis, which was claimed to have been followed, is clearly found to be incorrect. 13. Situated thus, we cannot but hold that the absorption of the private Respondent was illegal, arbitrary and suffered from denial of a right of fair treatment to the present Appellants. The absorption of the private Respondents cannot, therefore, be allowed to stand good on record. 14. We are conscious of the fact that in the writ petitions, the Appellants had not specifically sought for setting aside and quashing of the orders of absorption of the private Respondents; but we cannot be unmindful of the fact that on the basis of the facts, which are found to have been clearly established on record, it is the duty of the Court, particularly, a Court, exercising writ jurisdiction under Article 226 of the Constitution of India, to mould the relief and grant the relief(s), which the parties concerned deserve. 15. In the face of the facts of the present case and the attending circumstances, we are clearly of the view that the orders of absorption of the private Respondents, being glaringly illegal, arbitrary and discriminatory in nature, cannot be sustained and since they were absorbed against two sanctioned vacant posts, the State Respondent's decision to fill up the said two posts by absorption has to be carried out in accordance with law by considering afresh the cases of not only the private Respondents but also of the Appellants for the purpose of absorption against the said two sanctioned posts, which would, now, fall vacant as a result of the absorption of the private Respondents having been set aside and quashed. The State Respondents shall also remain at liberty to consider the cases of the Appellants and private Respondents for absorption against such other posts as may be available, but consideration of such absorption too and the decision thereon shall be taken in accordance with law. 16. The State Respondents shall also remain at liberty to consider the cases of the Appellants and private Respondents for absorption against such other posts as may be available, but consideration of such absorption too and the decision thereon shall be taken in accordance with law. 16. With the above end in view, we set aside and quash the order, dated 26.8.2009, whereby the private Respondents were absorbed, and we direct the State Respondents to consider the cases of the present Appellants as well as the private Respondents for absorption against the two posts, which the private Respondents have been so far occupying. We also leave the State Respondents at liberty to pass such other appropriate order(s) of absorption, as may be deemed necessary, should more posts become available for such absorption. We further direct that the exercise of consideration of the cases of the Appellants and the private Respondents, for the purpose of their absorption, as directed above, shall be completed within a period of six weeks from today. 17. With the above observations and directions, the writ appeals shall stand disposed of. 18. No order as to costs.